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ADDRESSES 


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ADDRESSES 


BY 


LE    BARON    BRADFORD   COLT 


BOSTON 

LITTLE,  BROWN,  AND    COMPANY 

1906 


Copyright,  igo6y 
By  Le  Baron  Bradford  Colt. 


All  rights  reserved 
Published  March,  1906 


r 


THE    UNIVERSITY    PRESS,    CAMBRIDGE,   U.S.A. 


CONTENTS 

Page 

John  Marshall i 

Address  at  the  Celebration  by  Brown  University  and 
the  Rhode  Island  Bar  Association,  February  4,  1901. 

The  Protection  of  the  President  of  the  United 

States 45 

Address  before  the  Annual  Meeting  of  the  New  Hamp- 
shire Bar  Association,  Concord,  March  3,  1902 

Law  AND  Reasonableness 77 

Address  before  the  Annual  Meeting  of  the  American  Bar 
Association,  Hot  Springs,  Virginia,  August  27,  1903. 

Contributions  of  Rhode  Island  to  the  Ameri- 
can Union 109 

Address  at  the  Louisiana  Purchase  Exposition,  St.  Louis, 
Missouri,  Rhode  Island  Day,  October  5,  1904. 

America's  Solution  of  the  Problem  of  Govern- 
ment  125 

Address  before  the  City  Council  and  Citizens  of  Boston, 
in  Faneuil  Hall,  July  4,  1905. 


M88558 


ILLUSTRATIONS 

Le  Baron  Bradford  Colt Frontispiece 

John  Marshall Facing  page  30 


ADDRESSES 


JOHN   MARSHALL     ;' '.v,  i    i.'.'V 

Address  before  Brown  University  and  the  Members  of  the  Rhode 
Island  Bar  Association  on  the  one  hundredth  anniversary  of  the 
installation  of  John  Marshall  as  Chief  Justice  of  the  United 
States,  delivered  in  Sayles  Memorial  Hall,  Providence,  on  Feb- 
ruary 4,  1 90 1. 

Ladies  and  Gentlemen  : 

UPON  the  first  meeting  of  the  Supreme 
Court  of  the  United  States  in  the  city 
of  Washington,  one  hundred  years  ago 
to-day,  John  Marshall  took  his  seat  as  Chief  Jus- 
tice. This  day  has  been  appropriately  called  "John 
Marshall  Day,"  and  it  is  a  fitting  time  for  the  Bar 
Associations,  the  Courts,  and  the  representatives 
of  our  seats  of  learning,  assembled  together,  to  re- 
call the  commanding  and  unique  position  the  great 
Chief  Justice  occupies  in  our  constitutional  history, 
■and  to  remind  the  people  of  the  inestimable  bless- 
ings which  have  flowed  from  his  judicial  labors.  It 
is  also  fitting  for  the  President  of  the  great  Federal 
Commonwealth,  which  bears  the  indelible  impress  of 
Jiis  genius,  to  request  the  Congress  to  observe  with 


2  ADDRESSES 

appropriate  exercises  the  centennial  anniversary  of 
the  day  he  became  the  head  of  the  Supreme  Court 
and  began  his  immortal  work  of  upbuilding  the 
Constitution. 
,  \  :  It  MJS\  recently  said  with  much  truth :  "  John  Mar» 
''  'Shall  yet  remains  the  great  unlaurelled  hero  of  early 
'\\ ;  4\rti6riqaqi\l)i^tory."  His  work  is  not  generally  known 
nor  fully  appreciated.  Such  is  the  common  fate  of 
the  highest  judicial  achievements.  From  their  nature 
they  do  not  attract  popular  attention ;  and  yet  a  sim-^ 
pie  entry  on  the  docket  of  the  Supreme  Court  of  the 
United  States  may  affect  the  destiny  of  the  nation 
more  than  Webster's  reply  to  Hayne,  or  Dewey's  vic- 
tory in  Manila  Bay.  We  live  under  a  government  of 
law.  Our  supreme  law  is  embodied  in  a  written  Con- 
stitution, and  the  judgments  of  the  highest  court  on 
constitutional  questions  may  involve  the  very  exist- 
ence of  the  Federal  Union. 

The  life  of  Marshall  has  been  called  the  constitu- 
tional history  of  the  country  from  1801  to  1835.  He 
set  and  fixed  in  its  proper  place  the  keystone  of  the 
beautiful  and  symmetrical  arch  of  States  which  now 
spans  a  continent.  He  carried  the  Constitution 
through  its  experimental  and  formative  stages,  de- 
fined its  enumerated  powers,  and  clothed  them  with 
an  authority  and  living  force  commensurate  with  their 
purpose.  He  "  gradually  unveiled  "  the  Constitution, 
in  the  words  of  Bryce,  "till  it  stood  revealed  in  the.- 


JOHN   MARSHALL  3 

harmonious  perfection  of  the  form  which  its  framers 
had  designed." 

We  are  to-day  what  the  Constitution  as  ex- 
pounded by  John  Marshall  has  made  us.  The 
character  and  supremacy  of  the  national  government 
we  owe  largely  to  him.  Marshall  was  more  than  the 
interpreter  of  the  Constitution.  He  was  the  creator 
of  constitutional  law  as  applied  to  a  written  Constitu- 
tion. His  luminous  judgments  determined  whether 
the  Constitution  should  stand  or  fall.  They  proved 
the  Constitution  created,  in  the  words  of  Chief  Justice 
Chase,  "  an  indestructible  Union,  composed  of  inde- 
structible States."  They  demonstrated  that  a  Federal 
Union  strong  enough  to  perpetuate  itself,  and  su- 
preme within  its  delegated  powers,  was  not  a  menace 
to  the  independence  of  the  States  nor  to  individual 
liberty,  but  was  the  guardian  and  shield  of  both. 
They  defined  the  relative  rights  of  the  States  and  the 
Federal  government  under  the  Constitution,  involv- 
ing often  the  momentous  question  of  sovereignty  — 
the  fatal  rock  on  which  Federal  Unions  are  broken 
into  fragments.  They  settled  beyond  challenge  or 
debate  the  question  of  sovereignty  as  a  judicial  ques- 
tion arising  under  the  Constitution.  The  only  right 
to  dissolve  the  Union  which  remained  with  the  States 
after  these  adjudications  was  the  right  of  revolution. 
They  established  the  novel  and  striking  feature  of  our 
political   system  that  the  construction  and  interpre- 


4  ADDRESSES 

tation  of  the  supreme  law  rests  with  the  judiciary 
department.  They  vindicated  the  supremacy  of  the 
Constitution  over  all  citizens  and  all  States.  They 
proved  beyond  question  that  the  Constitution  created 
a  government,  a  composite  republic,  a  nation;  not  a 
league,  a  compact,  or  a  mere  confederacy.  They  un- 
doubtedly preserved  the  Union  in  1861,  when  the 
attempt  was  made  to  settle  constitutional  questions 
by  force  of  arms.  Had  not  the  judgments  of  the  Su- 
preme Court,  during  the  thirty-four  years  Marshall 
was  Chief  Justice,  established  the  supremacy  of  the 
Constitution  as  opposed  to  the  doctrine  of  State  sov- 
ereignty, the  Civil  War  would  have  been  a  war  of 
conquest,  and  the  Federal  tie  forever  severed.  "  The 
Southern  Confederacy,  as  the  embodiment  of  political 
ideas,"  says  Judge  Phillips,  "  surrendered  not  to  Grant, 
not  to  Sherman,  not  to  Thomas  or  to  Sheridan,  but  to 
the  statesman,  the  jurist  and  sage,  —  John  Marshall." 
The  decisions  of  Marshall  have  instilled  in  us  the 
worship  of  the  Constitution.  They  have  built  up  a 
national  spirit.  They  have  not  led  to  the  consolida- 
tion of  the  States,  but  to  the  consolidation  of  national 
sentiment.  They  are  the  foundation  of  the  patriot- 
ism, affection,  and  pride  which  fill  all  our  hearts 
as  we  look  upon  our  country  at  the  opening  of  a 
new  century,  and  contemplate  with  emotion  the  proud 
position  she  occupies  among  the  nations  of  the  earth. 
They  have  elevated  our  form  of  government  in  the 


JOHN   MARSHALL  5 

eyes  of  the  world,  and  disproved  the  judgment  of  man- 
kind that  a  Federal  Commonwealth  is  weak  and  un- 
stable. They  have  shown  that,  in  the  hands  of  an 
intelligent  people,  such  a  political  system  may  exist 
in  a  perfect  form  for  centuries,  that  it  may  extend 
over  a  vast  area,  peopled  by  different  races,  and  may 
realize  under  such  conditions  its  high  ideal  of  com- 
bining the  energy,  patriotism,  and  freedom  of  a  small 
republic,  with  the  unity,  security,  and  power  of  a  great 
empire.  Speaking  of  Marshall's  decisions  in  an  ad- 
dress before  the  American  Bar  Association,  Edward 
J.  Phelps  declared :  '*  They  passed,  by  universal  con- 
sent, and  without  any  further  criticism,  into  the  fun- 
damental law  of  the  land,  axioms  of  the  law,  no  more 
to  be  disputed.  They  have  remained  unchanged,  un- 
questioned, unchallenged.  They  will  stand  as  long  as 
the  Constitution  stands.  And  if  that  should  perish, 
they  will  remain,  to  display  to  the  world  the  principles 
upon  which  it  rose,  and  by  the  disregard  of  which  it 
fell." 

Our  national  government  was  moulded  and  shaped 
by  the  master  hand  of  John  Marshall.  To  compre- 
hend the  character  and  greatness  of  his  work,  it  is 
important  to  understand  the  nature  and  tendency  of 
the  form  of  government  which  was  organized  under 
the  Constitution.  Of  all  political  systems  a  Federal 
Commonwealth  is  the  most  complex,  delicate,  and 
elaborate.     It   can  only  exist  among  a  highly  civil- 


6  ADDRESSES 

ized  people,  who  have  been  educated  for  generations 
in  the  art  of  civil  government.  It  is  an  ideal  gov- 
ernment. It  is  founded  upon  a  compromise  between 
opposite  political  systems,  and  it  seeks  to  combine 
the  advantages  of  each  —  the  freedom  of  a  small  state 
with  the  unity  and  security  of  a  consolidated  em- 
pire. It  is  an  artificial  system;  and,  inherently,  it 
is  perhaps  the  weakest  known  form  of  government. 
Based  on  a  division  of  sovereignty,  it  is  a  sover- 
eign within  sovereigns,  a  government  within  gov- 
ernments, a  single  state  in  some  things  and  many 
states  in  other  things,  a  unit  in  its  external  relations 
and  on  matters  which  affect  the  general  welfare,  and 
composed  of  many  units  in  its  internal  government. 
States  and  cities  have  repeatedly  striven  to  realize 
the  Federal  idea;  but,  with  three  oi  four  exceptions, 
they  have  been  successful  only  in  an  imperfect  de- 
gree, and  for  a  comparatively  short  period  of  time. 
The  most  illustrious  exception  is  the  United  States. 
History  teaches  what  we  should  expect  from  the  na- 
ture and  artificial  character  of  its  organization,  —  that 
the  ever  impending  danger  to  this  political  system 
is  not  consolidation,  but  the  weakness  of  the  Federal 
bond.  The  forces  which  tend  to  direct  the  States  to- 
wards the  central  union  are  less  strong  than  the  forces 
which  tend  to  drive  them  away  from  it,  because  the 
ties  of  citizenship,  local  interests,  and  a  common  his- 
tory bind  the  people  to  the  State  and  its  autonomy. 


JOHN   MARSHALL  7 

Federal  unions  have  always  perished  from  the  weak- 
ness of  the  Federal  tie,  or  from  conquest.  They  have 
never  grown  into  a  consolidated  state  through  the  de- 
struction of  the  separate  members  of  the  union.  It 
was  the  weakness  of  the  Federal  tie  which  constantly 
threatened  the  disruption  of  the  Achaian  League. 
And  the  same  is  true  of  the  United  Netherlands. 
The  Swiss  Confederation  has  never  suffered  from  the 
strength  of  the  central  power,  but  rather  from  its 
inborn  weakness.  The  history  of  our  own  Federal 
Union  is  familiar.  We  know  that  for  three-quarters 
of  a  century  after  the  adoption  of  the  Constitution  the 
grave  peril,  ever  present,  sometimes  threatening,  and 
once  only  averted  by  civil  war,  was  disunion,  not  con- 
solidation. Historians  have  always  recognized  the  in- 
herent weakness  of  a  Federal  form  of  government.  It 
was  not  surprising,  therefore,  that  in  1863  the  emi- 
nent English  historian  and  scholar.  Freeman,  after 
ten  years  of  research  and  reflection  on  the  subject, 
should  have  begun  the  publication  of  a  work  entitled 
"  History  of  Federal  Government  from  the  Founda- 
tion of  the  Achaian  League  to  the  Disruption  of  the 
United  States,"  in  which  he  prophesied  the  exchange 
of  ambassadors  between  the  United  States  and  the 
Confederate  States  before  the  year  1869.  That  Free- 
man never  completed  his  work,  that  his  prophecy 
proved  false,  was  owing,  in  a  large  measure,  to  the 
constitutional  decisions  of  Chief  Justice  Marshall. 


8  ADDRESSES 

Marshall's  early  conviction  of  the  supreme  danger 
which  confronted  the  Federal  Union  is  stated  by 
Judge  Story:  "  In  his  view  the  Republic  is  not  des- 
tined to  perish,  if  it  shall  perish,  by  the  overwhelming 
power  of  the  National  Government,  but  by  the  resist- 
ing and  counteracting  power  of  the  State  sovereign- 
ties." Marshall  met  and  overcame  the  danger  by 
incorporating  into  the  fundamental  law  the  great  fact 
that  our  Federal  Constitution  establishes  a  perpetual 
government  complete  within  itself. 

Constitutions  grow.  They  do  not  march  alone. 
National  spirit  is  the  product  of  growth.  It  is  not 
a  sudden  creation.  A  national  constitution,  to  be 
effective  and  fulfil  the  purpose  for  which  it  is  de- 
signed, must  reflect  the  spirit  and  temper  of  the 
people.  The  life  of  such  a  constitution  is  dependent 
on  the  growth  of  a  strong  national  sentiment.  Our 
Federal  Constitution  at  the  time  of  its  adoption 
was  a  creation.  It  did  not  represent  a  growth. 
It  was  an  experiment,  a  hope,  a  dream.  The  people 
were  full  of  apprehension  and  dire  forebodings  as 
to  the  result.  They  saw  the  spectre  of  a  "  kingly 
crown,"  the  destruction  of  the  States,  the  subversion 
of  their  liberties.  They  had  not  grown  up  to  the 
national  idea.  Their  spirit  and  temper,  their  laws 
and  governments,  were  colonial.  Their  interests  and 
affections,  their  habits,  prejudices,  and  past  history, 
bound   them   to   the    States.     The   Colony  or   State 


JOHN  MARSHALL  9 

was  their  mother,  the  centre  of  their  political  life,  and 
to  her  they  owed  allegiance  first  of  all.  They  were 
citizens  of  Rhode  Island,  Massachusetts,  Virginia, — 
not  American  citizens. 

Twelve  years  before  Marshall  took  his  seat,  the 
Constitution,  in  the  words  of  John  Quincy  Adams, 
had  been  "  extorted  from  the  grinding  necessity  of  a 
reluctant  people."  The  popular  vote  was  undoubt- 
edly against  its  adoption.  The  spirit  of  the  times 
is  well  illustrated  by  Patrick  Henry,  who  exclaimed 
in  the  Virginia  Convention  of  1788,  when  speaking 
of  the  framers  of  the  Constitution:  "Who  author- 
ized them  to  speak  the  language  of  *  We^  the  people^ 
instead  of  *  We,  the  States '  1  States  are  the  charac- 
teristics and  the  soul  of  a  confederation.  If  the 
States  be  not  the  agents  of  this  compact,  it  must  be 
one  great,  consolidated,  national  government,  of  the 
people  of  all  the  States."  It  is  seen  in  the  adoption 
of  the  Constitution  by  the  narrow  majority  of  three 
in  the  New  York  Convention,  ten  in  the  Virginia 
Convention,  and  nineteen  in  the  Massachusetts  Con- 
vention, after  the  most  strenuous  labors  of  its  advo- 
cates, and  under  the  pressure  brought  about  by  the 
annihilation  of  public  credit,  the  threatened  paralysis 
of  commerce,  and  the  impending  dissolution  of  the 
Confederation.  It  is  manifested  in  bitterly  denounc- 
ing as  unconstitutional  abuses  of  power  Washington's 
proclamation  of  neutrality  in    1793  on  the  outbreak 


10  ADDRESSES 

of  the  war  between  England  and  the  French  Repub- 
lic, and  the  ratification  of  Jay's  treaty  with  England 
in  1795.  ^t  is  exhibited  in  the  statute  of  the  State 
of  Georgia  inflicting  the  penalty  of  death  on  any 
one  who  should  presume  to  enforce  the  process  of 
the  Supreme  Court  in  the  case  of  Chisholm  v.  State 
of  Georgia,  where  the  State  was  held  liable  for  the 
payment  of  a  private  claim ;  and  in  the  case  of  the 
United  States  v.  Peters,  where  the  Governor  of  Penn- 
sylvania ordered  out  a  brigade  of  militia  to  obstruct 
the  service  of  a  Federal  writ. 

"Not  a  year  went  by,"  says  McMaster,  "but  one 
or  more  States  bade  defiance  to  the  Federal  govern- 
ment." The  Virginia  and  Kentucky  resolutions  of 
1798  and  1799  also  bear  witness  to  the  want  of 
national  sentiment ;  so,  in  like  manner,  the  proposed 
amendment  to  the  Constitution  submitted  by  John 
Randolph  :  "  The  Judges  of  the  Supreme  Court  and 
all  other  Courts  of  the  United  States  shall  be  re- 
moved by  the  President  on  the  joint  address  of  both 
houses  of  Congress."  The  same  state  of  public  feel- 
ing is  indicated  in  the  popular  revulsion  against  the 
Federalists  which  soon  swept  that  party  out  of  power, 
and  later  out  of  existence,  and  installed  the  opposition, 
then  known  as  the  Republican  party,  thirty  days  after 
Marshall  became  Chief  Justice. 

For  thirty-four  years  Marshall's  decisions  vindi- 
cated  the   necessity  and  value  of   the  Constitution. 


JOHN  MARSHALL  11 

They  incorporated  the  national  idea  into  the  funda- 
mental law,  and  they  have  been  a  most  potent  factor 
in  the  development  and  promotion  of  the  intense 
national  spirit  which  now  pervades  the  country. 

Marshall's  soul  was  filled  with  the  spirit  of  the 
Constitution,  —  the  soul  of  the  patriot  and  statesman 
as  well  as  jurist.  He  loved  the  Constitution.  It 
was  his  life.  His  judgment  and  affections  bound 
him  to  it.  His  great  intellectual  powers  were  de- 
voted to  it.  He  studied  and  mastered  it.  It  was 
his  constant  practice  to  read  and  re-read  it.  He 
knew  its  scope  and  purpose,  its  strength  and  weak- 
ness, its  powers  and  limitations,  its  checks  and 
balances.  He  was  with  it  at  its  creation.  He  had 
stood  by  its  cradle.  He  had  followed  its  history. 
He  realized  the  struggles  and  sufferings  which  pre- 
ceded its  birth,  and  the  ruin  which  was  involved  in 
its  fall.  As  he  wrote  those  masterpieces  of  judicial 
reasoning,  there  seems  ever  present  to  his  mind  the 
beautiful  and  stately  preamble : 

"We,  the  people  of  the  United  States,  in  order 
to  form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defence, 
promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  States 
of  America." 

At  the  same  time  his  thoughts  must  have  carried 


12  ADDRESSES 

him  back  to  the  struggles  of  the  Revolutionary  War 
in  which  he  participated,  —  to  Brandywine,  German- 
town,  and  the  blood-tracked  snows  of  Valley  Forge ; 
to  his  efforts  in  the  Virginia  legislature  to  secure  a 
more  efficient  Federal  government;  to  his  exertions 
in  the  convention  of  his  own  State  in  behalf  of  the 
adoption  of  the  Constitution;  to  his  triumphant  de- 
fence of  Washington's  administration  in  the  Virginia 
legislature ;  to  the  insults  heaped  upon  the  weakness 
of  his  country  by  Talleyrand  during  his  mission  to 
France;  to  his  supreme  effort  at  a  critical  time  in 
sustaining  the  rightful  authority  of  the  executive  in 
the  Congress  of  1799,  —  these  and  other  great  events 
in  which  he  took  part  must  have  crowded  upon  his 
memory,  animated  his  whole  being,  and  deepened 
his  conviction  that  the  Constitution  should  be  inter- 
preted in  the  spirit  of  the  preamble,  and  so  secure 
to  the  people  the  blessings  of  liberty  and  a  perpetual 
Union. 

The  Constitution  was  the  outcome  of  mutual  con- 
cessions and  many  compromises.  It  was  offered  to 
the  people  of  the  several  States  for  ratification  as 
the  best  result  attainable.  It  was  regarded  by  the 
advocates  of  a  strong  Union  as  too  weak,  and  by. 
those  of  a  weak  Union  as  too  strong.  "  Nobody 
liked  all  its  provisions,  and  everybody  feared  some  of 
them."  It  was  adopted  by  its  framers  in  a  spirit  of 
harmony  and  patriotism,  and  lest  their  efforts  might 


JOHN  MARSHALL  13 

prove  fruitless.  The  general  sentiment  of  the  Con- 
vention finds  expression  in  the  words  of  the  vener- 
able Franklin :  "  I  agree  to  this  Constitution  with 
all  its  faults  —  if  they  are  such — because  I  think  a 
general  government  necessary  for  us.  I  consent  to 
this  Constitution  because  I  expect  no  better,  and 
because  I  am  not  sure  it  is  not  the  best.  The 
opinions  I  have  had  of  its  errors  I  sacrifice  to  the 
public  good." 

The  wisdom,  ripe  experience,  lofty  patriotism,  and 
constructive  powers  of  that  remarkable  body  of  men 
who  framed  the  Constitution,  and  the  greatness  of 
their  work,  are  universally  recognized ;  but  it  is 
equally  true  that  the  instrument  as  it  left  their 
hands  was  not  a  finished  and  complete  work.  The 
Constitution  is  not  merely  the  work  of  the  framers, 
says  Mr.  Bryce,  "but  the  work  of  the  judges,  and 
most  of  all  of  one  man,  the  great  Chief  Justice 
Marshall."  It  was  designed  as  the  framework  of  a 
comparatively  novel  form  of  government,  and  not  as 
a  complete  code  of  laws.  It  was  a  skeleton,  and 
the  heart  and  brain  and  nei-ves  to  make  it  a  living 
organism  were  in  a  large  degree  supplied  by  Mar- 
shall's construction  and  interpretation.  The  powers 
enumerated  are  brief.  They  are  broad  in  scope  and 
expressed  in  general  terms.  Much  was  necessarily 
left  to  implication,  and  much  was  designedly  omit- 
ted.    This  resulted  from  the  jealousy  of  the  States 


14  ADDRESSES 

and  the  fear  of  consolidation  or  despotism.  The 
framers  realized  that  if  all  the  powers  essential  to 
accomplish  the  great  purposes  of  the  instrument 
had  been  fully  set  out  it  probably  never  would  have 
been  ratified.  Had  the  Constitution  contained  a  pro- 
vision that  the  Supreme  Court  should  be  the  final 
judge  of  the  fundamental  law  and  of  its  own  juris- 
diction, with  the  power  to  nullify  an  Act  of  Con- 
gress or  a  State  statute,  its  adoption  would  have 
been  extremely  dpubtful.  It  was  admitted  at  the 
time  that  its  success  or  failure  depended  upon  its 
construction.  This  was  the  great  work  which  fell 
to  Marshall,  and  the  saying  is  true :  "  He  made  of 
us  a  nation  by  construction." 

The  fame  of  Marshall  rests  largely  upon  his  judi- 
cial judgments  adjusting  the  relative  powers  of  the 
Federal  government  and  the  States,  under  the  Con- 
stitution. The  settlement  of  these  rights  has  always 
been  the  battle-ground  of  Federal  unions  and  a  men- 
ace to  their  perpetuity.  It  was  this  irrepressible 
conflict  which  nearly  wrecked  the  Confederation, 
which  divided  the  convention  that  framed  the  Con- 
stitution, and  constantly  imperilled  that  instrument 
after  its  adoption.  The  people  under  a  Federal 
system  are  always  divided  into  two  great  political 
parties:  those  who  favor  and  those  who  oppose  a 
strong  central  authority ;  those  who  believe  such 
authority  is  indispensable  to  the  maintenance  of  a 


JOHN  MARSHALL  15 

permanent  Union  and  free  institutions,  and  those 
who  believe  it  dangerous  to  the  rights  of  the  States 
and  to  individual  liberty.  Marshall  referred  to  this 
when  he  wrote :  "  The  country  was  divided  into  two 
great  political  parties,  the  one  of  which  contem- 
plated America  as  a  nation,  and  labored  incessantly 
to  invest  the  Federal  head  with  powers  competent 
to  the  preservation  of  the  Union;  the  other  attached 
itself  to  the  State  governments,  viewed  all  the  powers 
of  Congress  with  jealousy,  and  assented  reluctantly 
to  measures  which  would  enable  the  head  to  act 
in  any  respect  independently  of  the  members." 
Since  it  is  the  verdict  of  history  that  the  danger 
to  the  rights  and  independence  of  the  States  and  to 
the  freedom  of  the  people  from  the  encroachments 
of  the  central  authority  does  not  exist  under  a 
Federal  system,  Marshall  showed  consummate  wis- 
dom and  statesmanship  in  so  adjusting  by  judicial 
construction  the  relative  powers  of  the  Federal  gov- 
ernment and  the  States  as  to  secure  the  supremacy 
of  the  Constitution  and  a  permanent  Union. 

The  new  government  had  been  organized  only  a 
short  time  when  the  momentous  questions  of  consti- 
tutional construction  endangered  its  stability  and 
existence. 

Did  the  Constitution  establish  a  sovereign  nation, 
or  a  mere  compact  between  sovereign  States  ?  Is  the 
Federal  government  the  final  judge  of  the  extent  of 


16  ADDRESSES 

the  powers  granted  -under  the  Constitution?  Is  the 
Supreme  Court  the  sole  judge  of  its  own  jurisdiction, 
and  is  it  authorized  to  declare  what  the  supreme  law 
is?  Did  the  Constitution  establish  an  efficient  and 
permanent  government,  or  is  the  Constitution,  in  the 
words  of  Marshall,  only  "a  solemn  mockery,"  "a 
magnificent  structure,  indeed,  to  look  at,  but  totally 
unfit  for  use"?  Is  it,  as  Pinkney  exclaimed  in 
McCulloch  V.  Maryland,  "a  competent  guardian  of 
all  that  is  dear  to  us  as  a  nation,"  or  is  it  "a  mere 
phantom  of  political  power,  a  pageant  of  mimic 
sovereignty  "  ? 

The  supremacy  of  the  Constitution  was  attacked  in 
many  ways.  It  was  insisted  that  the  Constitution  did 
not  destroy,  as  an  ultimate  question,  the  sovereignty 
of  the  States.  The  Supreme  Court  is  not  the  judge 
of  its  own  jurisdiction,  because  that  would  make  it 
sovereign.  It  might  be  a  convenient  agency  in  the 
government,  but  it  is  inconsistent  with  the  nature  of 
sovereignty  that  a  sovereign  State  should  submit  to 
its  judgments.  This  would  make  the  agent  the  mas- 
ter, and  the  Supreme  Court  would  become  a  menace 
to  the  States.  There  exists  no  supervisory  power  in 
the  Supreme  Court  to  revise  the  action  of  a  sovereign 
State.  It  has  no  right  to  nullify  the  legislative  act  of 
a  State.  It  has  no  power  to  declare  void  an  Act  of 
Congress,  because,  under  the  Constitution,  the  govern- 
ment  is   organized  into   co-ordinate   departments   of 


JOHN  MARSHALL  17 

equal  authority.  The  powers  expressly  granted  to 
Congress  and  the  prohibitions  imposed  on  the  States, 
under  the  Constitution,  should  receive  a  strict  con- 
struction. The  power  of  Congress  to  make  all  neces- 
sary and  proper  laws  to  carry  into  effect  the  powers 
granted  by  the  Constitution  should  not  be  expanded 
by  implication  to  cover  other  powers  not  specifically 
enumerated. 

The  answers  to  these  and  other  contentions  are 
found  in  Marshall's  decisions,  and  they  are  embraced 
in  certain  fundamental  conclusions:  The  Constitu- 
tion organizes  a  government  complete  within  itself. 
It  establishes  a  perpetual  Union  and  is  the  guardian 
of  the  rights  of  the  people.  For  these  great  pur- 
poses the  powers  conferred  by  that  instrument  are 
sufficient.  Under  the  Confederation  the  central 
authority  exerted  its  action  upon  sovereign  States, 
and  they  were  not  compelled  to  obey  its  mandates. 
Under  the  Constitution  the  Federal  powers  are  ex- 
erted directly  upon  the  people,  and  they  establish 
a  government,  as  distinguished  from  a  mere  confed- 
eration, with  the  usual  powers  of  a  government,  and 
organized  into  different  departments.  The  Consti- 
tution does  not  limit  the  exercise  of  Federal  power 
to  strictly  Federal  subjects,  but  goes  beyond,  and 
by  its  prohibitions  upon  the  States  shields  the 
personal  rights  of  the  individual.  Sovereignty  in 
the  United  States   resides   in   the   people.      It  does 


18  ADDRESSES 

not  rest,  as  in  England,  with  Parliament,  or  with 
the  sovereign  ruler,  as  in  many  European  countries. 
The  people  have  surrendered  a  portion  of  their 
sovereignty  in  the  form  of  a  written  Constitution, 
and  the  people  only  can  revoke,  alter,  or  amend 
their  own  supreme  law.  The  national  authority 
is  conferred  and  measured  by  the  Federal  Constitu- 
tion, and  "  prescription  cannot  aid  it,  nor  precedent 
enlarge  it.'*  The  Constitution  is  the  supreme  law 
of  the  land,  and  as  such  is  supreme  over  all  citizens 
and  over  State  authority.  The  reserve  powers  of  the 
States  cannot  stay  the  operation  of  the  supreme  law. 

The  Union  being  perpetual,  it  cannot  be  dissolved 
by  a  part  of  the  States  or  by  the  people  of  those 
States.  The  Federal  government  is  the  final  judge 
of  the  nature  and  extent  of  its  powers  under  the 
Constitution.  The  Supreme  Court  is  the  judge  of 
its  own  jurisdiction  and  of  what  the  law  is.  It 
may  nullify  an  Act  of  Congress  or  of  a  State,  and 
it  has  a  supervisory  power  over  the  judgments  of 
the  highest  courts  of  a  State  where  a  constitutional 
question  is  involved.  There  are  also  implied  powers 
in  the  Constitution,  and  if  the  end  be  legitimate,  the 
means  appropriate  to  that  end,  when  not  prohibited, 
are  constitutional,  if  within  the  spirit  and  scope  cA 
that  instrument. 

Such  were  some  of  the  principles  of  construction 
applied  to  the  Constitution  in   Marshall's  decisions, 


JOHN   MARSHALL  19 

which,  for  lucid  and  cogent  reasoning,  power  of  analy- 
sis, comprehensiveness,  and  broad  generalization,  have 
never  been  surpassed.  They  cover  the  great  under- 
lying problems  of  constitutional  interpretation.  They 
deal  with  the  questions  of  the  powers  granted  to  Con- 
gress, the  reserved  powers  of  the  States,  and  the 
restrictions  imposed  upon  the  States  by  the  ex- 
pressed and  implied  powers  of  Congress. 

Marbury  v.  Madison  was  one  of  Marshall's  earlier 
and  most  famous  decisions.  It  was  there  held  that 
the  Constitution  is  the  supreme  law,  that  an  Act  of 
Congress  repugnant  thereto  is  void,  and  that  the 
Supreme  Court  is  the  final  judge  of  the  fundamental 
law. 

"The  question,"  said  the  Chief  Justice,  "whether 
an  act  repugnant  to  the  Constitution  can  become  the 
law  of  the  land  is  a  question  deeply  interesting  to  the 
United  States.  .  .  .  That  the  people  have  an  original 
right  to  establish,  for  their  future  government,  such 
principles,  as  in  their  opinion,  shall  most  conduce  to 
their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  .  .  .  This  original 
and  supreme  will  organizes  the  government,  and  as- 
signs to  different  departments  their  respective  powers. 
.  .  .  The  Constitution  is  either  a  superior,  paramount 
law,  unchangeable  by  ordinary  means,  or  it  is  on  a 
level  with  ordinary  legislative  acts,  and,  like  other 
acts,  is  alterable  when  the  legislature  shall  please  to 


20  ADDRESSES 

alter  it.  If  the  former  part  of  the  alternative  be  true, 
then  a  legislative  act  contrary  to  the  Constitution  is 
not  law;  if  the  latter  part  be  true,  then  written  con- 
stitutions are  absurd  attempts,  on  the  part  of  the 
people,  to  limit  a  power  in  its  own  nature  illimitable. 

"  Certainly  all  those  who  have  framed  written 
constitutions  contemplate  them  as  forming  the  funda- 
mental and  paramount  law  of  the  nation,  and,  con- 
sequently, the  theory  of  every  such  government  must 
be,  that  an  act  of  the  legislature  repugnant  to  the 
Constitution  is  void. 

"  This  theory  is  essentially  attached  to  a  written 
constitution,  and  is  consequently  to  be  considered  by 
this  Court  as  one  of  the  fundamental  principles  of 
our  society.  ...  It  is  emphatically  the  province  and 
duty  of  the  judicial  department  to  say  what  the  law 
is.  .  .  .  This  is  of  the  very  essence  of  judicial  duty. 
.  .  .  Those  then  who  controvert  the  principle  that 
the  Constitution  is  to  be  considered  in  court  as  a 
paramount  law  are  reduced  to  the  necessity  of  main- 
taining that  courts  must  close  their  eyes  on  the  Con- 
stitution, and  see  only  the  law.  This  doctrine  would 
subvert  the  very  foundation  of  all  written  constitu- 
tions. It  would  declare  that  an  act  which,  according 
to  the  principles  and  theory  of  our  government,  is 
entirely  void,  is  yet,  in  practice,  completely  obligatory. 
It  would  declare  that,  if  the  legislature  shall  do  what 
is  expressly  forbidden,  such   act,  notwithstanding  the 


JOHN  MARSHALL  21 

express  prohibition,  is  in  reality  effectual.  ...  It  is 
prescribing  limits,  and  declaring  that  those  limits  may 
be  passed  at  pleasure. 

"  That  it  thus  reduces  to  nothing  what  we  have 
deemed  the  greatest  improvement  on  political  insti- 
tutions, a  written  Constitution,  would  of  itself  be 
sufficient,  in  America,  where  written  constitutions 
have  been  viewed  with  so  much  reverence,  for  reject- 
ing the  construction." 

It  was  by  such  unanswerable  reasoning  that  Mar- 
shall reached  his  conclusions. 

In  United  States  v.  Peters^  where  the  question 
arose  of  the  power  of  a  State  by  statute  to  disregard 
a  judgment  of  the  Supreme  Court,  the  Chief  Justice 
declared : 

"  If  the  legislatures  of  the  several  States  may,  at 
will,  annul  the  judgments  of  the  courts  of  the  United 
States,  and  destroy  the  rights  acquired  under  those 
judgments,  the  Constitution  itself  becomes  a  solemn 
mockery;  and  the  nation  is  deprived  of  the  means  of 
enforcing  its  laws  by  the  instrumentality  of  its  own 
tribunals." 

The  power  of  the  Supreme  Court  to  review  the 
judgment  of  the  highest  court  of  a  State,  where  a 
constitutional  question  is  involved,  was  affirmed  in 
Cohens  v.  Virginia.  In  his  great  opinion  in  that 
case,  the  Chief  Justice  observed: 

"  The  questions  presented  to  the  Court  by  the  first 


22  ADDRESSES 

two  points  made  at  the  bar  are  of  great  magnitude, 
and  may  be  truly  said  vitally  to  affect  the  Union. 
They  exclude  the  inquiry  whether  the  Constitution 
and  laws  of  the  United  States  have  been  violated  by 
the  judgment  which  the  plaintiffs  in  error  seek  to  re- 
view; and  maintain  that,  admitting  such  violation,  it 
is  not  in  the  power  of  the  government  to  apply  a  cor- 
rective. They  maintain  that  the  nation  does  not  pos- 
sess a  department  capable  of  restraining  peaceably, 
and  by  authority  of  law,  any  attempts  which  may  be 
made  by  a  part,  against  the  legitimate  powers  of  the 
whole;  and  that  the  government  is  reduced  to  the 
alternative  of  submitting  to  such  attempts,  or  of  resist- 
ing them  by  force.  They  maintain  that  the  Constitu- 
tion of  the  United  States  has  provided  no  tribunal  for 
the  final  construction  of  itself  or  of  the  laws  or  trea- 
ties of  the  nation ;  but  that  this  power  may  be  exer- 
cised, in  the  last  resort,  by  the  Courts  of  every  State 
in  the  Union.  That  the  Constitution,  laws,  and  trea- 
ties may  receive  as  many  constructions  as  there  are 
States;  and  that  this  is  not  a  mischief,  or,  if  a  mis- 
chief, is  irremediable.  ...  If  such  be  the  Constitu- 
tion, it  is  the  duty  of  the  Court  to  bow  with  respectful 
submission  to  its  provisions.  If  such  be  not  the 
Constitution,  it  is  equally  the  duty  of  the  Court  to 
say  so ;  and  to  perform  that  task  which  the  American 
people  have  assigned  to  the  judicial  department." 
After  quoting  Article  6  of  the  Constitution,  which 


JOHN  MARSHALL  23 

declares  that  the  Constitution,  laws,  and  treaties  shall 
be  the  supreme  law  of  the  land,  the  opinion  proceeds : 
"  This  is  the  authoritative  language  of  the  American 
people ;  and,  if  the  gentlem.en  please,  of  the  American 
States.  It  marks,  with  lines  too  strong  to  be  mis- 
taken, the  characteristic  distinction  between  the  gov- 
ernment of  the  Union  and  those  of  the  States.  The 
general  government,  though  limited  as  to  its  objects,  is 
supreme  with  respect  to  those  objects.  This  principle 
is  a  part  of  the  Constitution ;  and  if  there  be  any  who 
deny  its  necessity,  none  can  deny  its  authority.  .  .  . 
A  Constitution  is  framed  for  ages  to  come,  and  is 
designed  to  approach  immortality  as  nearly  as  human 
institutions  can  approach  it.  Its  course  cannot  always 
be  tranquil.  It  is  exposed  to  storms  and  tempests; 
and  its  framers  must  be  unwise  statesmen,  indeed, 
if  they  have  not  provided  it,  as  far  as  its  nature  will 
permit,  with  the  means  of  self-preservation  from  the 
perils  it  may  be  destined  to  encounter.  .  .  .  The 
people  made  the  Constitution,  and  the  people  can 
unmake  it.  It  is  the  creature  of  their  will,  and  lives 
only  by  their  will.  But  this  supreme  and  irresistible 
power  to  make  or  to  unmake,  resides  only  in  the 
whole  body  of  the  people ;  not  in  any  subdivision  of 
them.  The  attempt  of  any  of  the  parts  to  exercise 
it  is  usurpation,  and  ought  to  be  repelled  by  those 
to  whom  the  people  have  delegated  their  power  of 
repelling  it." 


24  ADDRESSES 

This  opinion,  which  is  tinged  with  patriotic  emo- 
tion, points  out  the  primary  and  elemental  principles 
on  which  the  Constitution  rests. 

McCulloch  V.  Maryland  is  a  notable  decision.  The 
case  involved  the  power  of  the  government  to  estab- 
lish a  bank,  as  an  implied  power  under  Article  i, 
Section  8,  giving  Congress  power  to  make  all  neces- 
sary and  proper  laws  for  carrying  into  execution 
the  powers  vested  by  the  Constitution  in  Congress 
or  in  the  government.  The  power  was  affirmed  by 
the  Chief  Justice.  "We  admit,"  he  said,  "and  all 
must  admit,  that  the  powers  of  the  government  are 
limited,  and  that  its  limits  are  not  to  be  transcended. 
But  we  think  the  sound  construction  of  the  Consti- 
tution must  allow  to  the  national  legislature  that 
discretion,  with  respect  to  the  means  by  which  the 
powers  it  confers  are  to  be  carried  into  execution, 
which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it,  in  the  manner  most  beneficial  to 
the  people.  Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that  end, 
which  are  not  prohibited,  but  consist  with  the  letter 
and  spirit  of  the  Constitution,  are  constitutional." 

Another  great  question  decided  in  that  case  related 
to  the  power  of  a  State  to  tax  a  bank  established  by 
the  government.  On  this  point  the  Chief  Justice 
declared : 


JOHN   MARSHALL  25 

*'  That  the  power  to  tax  involves  the  power  to 
destroy;  that  the  power  to  destroy  may  defeat  and 
render  useless  the  power  to  create;  that  there  is  a 
plain  repugnance,  in  conferring  on  one  government 
a  power  to  control  the  constitutional  measures  of 
another,  which  other,  with  respect  to  those  very 
measures,  is  declared  to  be  supreme  over  that  which 
exerts  the  control,  are  propositions  not  to  be  denied. 
...  If  the  States  may  tax  one  instrument,  employed 
by  the  government  in  the  execution  of  its  powers, 
they  may  tax  any  and  every  other  instrument." 

The  necessity  of  uniform  regulations  of  commerce 
was  the  most  powerful  cause  which  led  to  the  adop- 
tion of  the  Constitution.  The  construction  of  the 
commerce  clause  in  that  instrument  came  under  con- 
sideration in  Gibbons  v.  Ogden,  The  State  of  New 
York  had  granted  to  Fulton  and  Livingston  the 
exclusive  right  to  navigate  all  the  waters  of  New 
York  with  vessels  propelled  by  steam.  This  right 
had  been  assigned  to  Ogden,  the  original  plaintiff. 
The  highest  court  of  New  York  had  restrained  the 
original  defendant.  Gibbons,  from  navigating  the 
Hudson  River  with  steamboats  licensed  under  an 
Act  of  Congress.  The  State  law  was  held  void. 
"  Commerce,"  said  the  Chief  Justice,  "  undoubtedly,  is 
traffic,  but  it  is  something  more:  it  is  intercourse. 
•  .  .  All  America  understands,  and  has  uniformly 
understood,   the   word    '  commerce '    to    comprehend 


26  ADDRESSES 

navigation.  .  .  .  The  power  over  commerce,  includ- 
ing navigation,  was  one  of  the  primary  objects  for 
which  the  people  of  America  adopted  their  govern- 
ment, and  must  have  been  contemplated  in  forming 
it.  .  .  .  This  power,  like  all  others  vested  in  Con- 
gress, is  complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations  other 
than  are  prescribed  in  the  Constitution.  .  .  .  The 
power  of  Congress,  then,  comprehends  navigation 
within  the  limits  of  every  State  in  the  Union ;  so  far 
as  that  navigation  may  be,  in  any  manner,  connected 
with  *  commerce  with  foreign  nations,  or  among  the 
several  States,  or  with  the  Indian  tribes.'  .  .  . 

"  Powerful  and  ingenious  minds,  taking,  as  pos- 
tulates, that  the  powers  expressly  granted  to  the 
government  of  the  Union  are  to  be  contracted  by 
construction  into  the  narrowest  possible  compass, 
and  that  the  original  powers  of  the  States  are  re- 
tained, if  any  possible  construction  will  retain  them, 
may,  by  a  course  of  well  digested  but  refined  and 
metaphysical  reasoning,  founded  on  these  premises, 
explain  away  the  Constitution  of  our  country,  and 
leave  it  a  magnificent  structure,  indeed,  to  look  at, 
but  totally  unfit  for  use." 

In  Canter  v.  The  American  Insurance  Company, 
where  the  validity  and  effect  of  the  treaty  of  1 819,  by 
which  Spain  ceded  Florida  to  the  United  States,  was 
before  the  Court,  the  Chief  Justice  said:  "The  Con- 


JOHN  MARSHALL  27 

stitution  confers  absolutely  on  the  government  of 
the  Union  the  powers  of  making  war  and  of  making 
treaties ;  consequently,  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or  by 
treaty." 

Marshall  was  not  in  favor  of  a  narrow  construction 
of  the  Constitution,  nor  of  an  enlarged  construction 
beyond  the  natural  meaning  of  the  words.  Upon  this 
general  question  he  observed,  in  Gibbons  v.  Ogden  : 

"What  do  the  gentlemen  mean  by  a  strict  con- 
struction ?  If  they  contend  only  against  that  enlarged 
construction  which  would  extend  words  beyond  their 
natural  and  obvious  import,  we  might  question  the 
application  of  the  term,  but  should  not  controvert  the 
principle.  If  they  contend  for  that  narrow  construc- 
tion which,  in  support  of  some  theory  not  to  be  found 
in  the  Constitution,  would  deny  to  the  government 
those  powers  which  the  words  of  the  grant,  as  usually 
understood,  import,  and  which  are  consistent  with  the 
general  views  and  objects  of  the  instrument ;  for  that 
narrow  construction  which  would  cripple  the  govern- 
ment, and  render  it  unequal  to  the  objects  for  which 
it  is  declared  to  be  instituted,  and  to  which  the  powers 
given,  as  fairly  understood,  render  it  competent ;  then 
we  cannot  perceive  the  propriety  of  this  strict  con- 
struction, nor  adopt  it  as  the  rule  by  which  the  Con- 
stitution is  to  be  expounded.  .  .  .  The  enlightened 
patriots  who  framed  our  Constitution,  and  the  people 


28  ADDRESSES 

who  adopted  it,  must  be  understood  to  have  employed 
words  in  their  natural  sense,  and  to  have  intended 
what  they  have  said.  If,  from  the  imperfection  of 
human  language,  there  should  be  serious  doubts  re- 
specting the  extent  of  any  given  power,  it  is  a  well 
settled  rule,  that  the  objects  for  which  it  was  given, 
especially  when  those  objects  are  expressed  in  the 
instrument  itself,  should  have  great  influence  in  the 
construction." 

This  occasion  will  not  permit  a  more  extended 
reference  to  Marshall's  opinions.  It  is  sufHcient  to 
observe  that  they  constitute  in  a  large  measure  the 
judicial  structure  of  the  nation. 

When  we  speak  of  the  Supreme  Court  decisions  on 
constitutional  questions  as  those  of  Marshall,  we  are 
doing  no  injustice  to  the  other  members  of  the  Court. 
His  master  mind  directed  and  governed  that  tribunal 
on  this  subject.  This  was  the  verdict  of  his  contem- 
poraries. In  dedicating  his  "Commentaries  on  the 
Constitution"  to  Marshall,  Judge  Story  wrote:  "  Other 
judges  have  attained  an  elevated  reputation  by  similar 
labors  in  a  single  department  of  jurisprudence.  But 
in  one  department  (it  need  scarcely  be  said  that  I 
allude  to  that  of  constitutional  law)  the  common 
consent  of  your  countrymen  has  admitted  you  stand 
without  a  rival.  Posterity  will  surely  confirm  by  its 
deliberate  award  what  the  present  age  has  approved 
as  an  act  of  undisputed  justice." 


JOHN  MARSHALL  29 

Of  the  six  decisions  involving  questions  of  consti- 
tutional law  from  the  organization  of  the  Court  in 
1790  to  Marshall's  appointment  in  1801,  only  two 
were  of  grave  importance.  From  1801  to  1835, 
covering  the  period  Marshall  was  Chief  Justice, 
sixty-two  decisions  on  constitutional  questions  w^ere 
given,  in  thirty-six  of  which  the  opinion  of  the 
Court  was  written  by  him.  Although  this  was  his 
most  important  work,  it  comprises  only  a  fraction 
of  his  judicial  labors.  In  the  thirty  volumes  of 
reports  extending  from  the  first  of  Cranch  to  and 
including  the  ninth  of  Peters,  there  are  eleven 
hundred  and  six  cases  in  which  opinions  were 
filed,  and  five  hundred  and  nineteen  of  these  were 
delivered  by  Marshall.  These  opinions  cover  ques- 
tions on  nearly  every  important  branch  of  juris- 
prudence. The  case  of  Ogden  v.  Saunders  was  the 
only  case  raising  a  constitutional  question  where 
the  majority  of  the  Court  differed  from  the  Chief 
Justice. 

In  the  department  of  constitutional  law,  the  field 
was  new.  There  were  few  precedents,  because  the 
construction  and  declaration  of  the  supreme  law  by 
a  j:ourt,  under  a  written  constitution,  was  unknown. 
Marshall's  only  light  was  the  inward  light  of  reason. 
He  had  *'no  guides  but  the  primal  principles  of 
truth  and  justice."  He  does  not  cite  a  single 
decision  on  the  great  constitutional  questions  deter- 


80  ADDRESSES 

mined  in  Marbury  v.  Madison,  Cohens  v.  Virginia^ 
Sturges  V.  Crowninskield,  McCulloch  v.  Maryland, 
and  Dartmouth  College  v.  Woodward,  Judge  Story 
said :  "  When  I  examine  a  question,  I  go  from  head- 
land to  headland,  from  case  to  case;  Marshall  has 
a  compass,  puts  out  to  sea,  and  goes  directly  to 
his  result."  Tradition  records  (we  will  not  say 
truthfully)  that  when  Marshall  had  finished  reading 
his  great  opinions,  he  would  sometimes  observe : 
"These  seem  to  me  to  be  the  conclusions  to  which 
we  are  conducted  by  the  reason  and  spirit  of  the 
law.     Brother  Story  will  furnish  the  authorities." 

Marshall's  decisions  are  demonstrations  founded 
upon  pure  reason.  They  are  chains  of  compact  rea- 
soning leading  to  inevitable  conclusions.  They  are 
almost  devoid  of  illustration  or  analogy.  They  show 
profound  meditation  and  deep  penetration.  They 
grapple  with  great  underlying  principles,  and  exclude 
extraneous  circumstances.  In  the  words  of  a  con- 
temporary :  "  When  we  regard  their  originality,  their 
depth,  their  clearness,  and  their  adamantine  strength, 
we  look  upon  them  as  the  highest  efforts  of  the 
human  mind."  Webster  declared :  "  When  Judge 
Marshall  says,  'It  is  admitted,' — Sir,  I  am  preparing 
for  a  bomb  to  burst  over  my  head  and  demolish  all 
my  points."  After  hearing  Marshall  deliver  several 
opinions,  William  Pinkney  exclaimed :  "  He  was  born 
to  be  the  Chief  Justice  of  any  country  in  which  he 


^Mfty^/iljSM^  .s4WS^^H»i  kSaS^-ixt^im.    ""    "* 


JOHN   MARSHALL  31 

lived."  And  John  Adams  said  that  his  gift  of  John 
Marshall  to  the  United  States  was  the  proudest  act 
of  his  life. 

When  Marshall,  at  the  age  of  forty-five,  was 
appointed  Chief  Justice,  he  had  been  engaged  in 
the  leading  events  of  his  time.  His  previous  life 
was  a  training  and  preparation  for  the  high  office 
he  then  assumed.  He  was  already  distinguished  as  a 
patriot,  lawyer,  legislator,  statesman,  and  diplomatist; 
and,  soon  after  he  became  Chief  Justice,  his  "  Life 
of  Washington"  was  published. 

Born  on  September  24,  1755,  in  Germantown, 
Fauquier  County,  Virginia,  his  early  youth  was 
passed  in  a  sparsely  settled  country  thirty  miles 
west,  near  the  Blue  Ridge  Mountains.  His  father 
was  a  friend  and  companion  of  Washington;  a 
colonel  in  the  Revolutionary  Army;  a  man  of 
marked  courage  and  energy,  and  well  read  in  the 
English  classics;  and  he  was  deeply  interested  in 
the  education  of  his  children. 

In  his  youth  Marshall  was  fond  of  out-door 
sports.  He  loved  nature,  and  poetic  longings  filled 
his  soul.  He  early  showed  a  taste  for  literature, 
which  he  retained  throughout  his  life.  Two  years* 
instruction  in  Latin  comprised  his  education,  except 
what  was  obtained  at  home. 

When  the  storm  of  the  Revolutionary  War  broke 
upon   the  Colonies,  the   youthful  spirit   of  Marshall 


32  ADDRESSES 

burned  with  patriotic  zeal.  Abandoning  his  studies, 
he  formed  a  company.  He  was  made  lieutenant 
and  afterwards  captain;  and  he  remained  with  the 
army,  except  for  a  short  period,  until  the  end  of 
the  war.  "  He  fought,"  says  a  recent  writer,  "  at 
the  battles  of  Brandywine,  Germantown,  and  Mon- 
mouth. He  was  with  Mad  Anthony  Wayne  at 
Stony  Point.  He  was  with  Lighthorse  Harry  Lee 
in  the  brilliant  action  at  Paulus  Hook.  He  suffered 
hardships  with  the  patriot  army  in  the  winter  encamp- 
ment upon  the  impregnable  heights  of  Morristown. 
He  was  with  his  great  commander  during  the  dreary 
midnight  of  the  Revolution  at  Valley  Forge.  In 
all  his  military  service  he  was  steadfast,  capable,  and 
valiant." 

At  the  age  of  twenty-five,  after  attending  a  course 
of  lectures  by  Chancellor  Wythe  at  William  and 
Mary  College,  Marshall  was  admitted  to  the  bar,  and 
rose  rapidly  to  eminence.  The  same  qualities  which 
afterwards  distinguished  him  as  a  judge  marked  his 
career  as  a  lawyer.  Calmness,  moderation,  penetra- 
tion, and  mental  grasp  characterized  his  forensic  ar- 
guments. In  describing  Marshall's  powers,  William 
Wirt  declared  that  he  possessed  "  one  original  and 
almost  supernatural  faculty,  —  the  faculty  of  devel- 
oping a  subject  by  a  single  glance  of  his  mind,  and 
detecting  at  once  the  very  point  on  which  every 
controversy  depends.     No  matter  what  the  question, 


JOHN   MARSHALL  33 

though  ten  times  more  knotty  than  the  gnarled  oak, 
the  lightning  of  heaven  is  not  more  rapid  nor  more 
resistless  than  his  astonishing  penetration."  It  was 
not  long  before  he  ranked  first  among  the  leaders 
of  the  bar  in  his  native  State.  The  two  volumes 
by  Washington  of  the  cases  adjudged  in  the  Vir- 
ginia Court  of  Appeals  disclose  his  name  as  Counsel 
in  a  large  majority  of  the  cases  reported. 

His  professional  reputation  became  national  in 
the  celebrated  case  of  Ware  v.  Hylton,  known  as 
the  English  Debt  case,  which  raised  the  question 
whether,  under  the  treaty  of  peace  of  1783,  British 
creditors  could  recover  debts  sequestrated  during 
the  Revolutionary  War  by  act  of  the  Virginia  leg- 
islature. The  honor  of  the  State  and  the  fortunes 
of  many  of  its  citizens  were  involved  in  the  issue. 
The  case  was  argued  before  the  Supreme  Court  in 
Philadelphia  in  the  winter  of  1796.  There  were 
engaged  in  it  the  most  learned  and  eloquent  mem- 
bers of  the  Virginia  bar,  which  at  that  time  was  said 
to  rank  first  in  the  country.  Marshall  appeared  as 
leading  counsel  for  the  defendants;  and,  although 
on  the  losing  side  of  the  case,  his  masterly  argu- 
ment excited  the  admiration  of  the  Court  and  the 
bar. 

Speaking  of  Marshall's  effort,  Wirt  says:  "  Marshall 
spoke,  as  he  always  does,  to  the  judgment  merely, 
and  for  the  simple  purpose  of  convincing.     Marshall 

3 


84  ADDRESSES 

was  justly  pronounced  one  of  the  greatest  men  of 
the  country.  He  was  followed  by  crowds,  looked 
upon  and  courted  with  every  evidence  of  admiration 
and  respect  for  the  great  powers  of  his  mind.  Mar- 
shall's maxim  seems  always  to  have  been,  *Aim 
exclusively  at  strength.'" 

Marshall's  career  as  a  legislator  was  a  school  and 
training  for  his  great  work  of  expounding  the  Consti- 
tution. He  was  a  member  of  the  Virginia  legislature 
for  several  years  following  the  close  of  the  Revolution- 
ary War  and  before  the  adoption  of  the  Constitution 
in  1789.  Questions  of  the  highest  importance  and 
statesmanship  occupied  the  attention  of  the  legisla- 
ture during  this  period.  The  Articles  of  Confedera- 
tion had  proved  entirely  inadequate  for  the  purposes 
of  an  efficient  government.  The  requisitions  of  Con- 
gress were  ignored,  and  the  disruption  of  the  Confede- 
ration was  imminent.  On  all  the  important  political 
questions  then  pending  before  the  legislature,  Mar- 
shall stood  with  Madison  in  pleading  for  a  stronger 
and  more  effective  Federal  union.  The  bitter  and 
cruel  experience  of  the  Colonies  during  these  years 
made  a  deep  impression  on  his  mind,  which  he  could 
not  afterwards  cast  aside  when  called  upon  to  deter- 
mine the  grave  questions  affecting  the  supremacy  and 
efficiency  of  the  new  Constitution. 

Marshall  was  a  delegate  to  the  Virginia  Conven- 
tion of  1788,  to  which  was  submitted  the  question  of. 


JOHN  MARSHALL  35 

the  ratification  of  the  Constitution.  The  Convention 
was  composed  of  the  most  eloquent  and  illustrious 
body  of  men  ever  gathered  together  in  the  State. 
Marshall  and  Madison,  by  their  supreme  exertions, 
were  hardly  able  to  stem  the  fiery  eloquence  of  Pat- 
rick Henry  and  the  powerful  arguments  of  Grayson 
and  George  Mason  in  opposition.  In  his  forcible 
speech  of  June  lo,  1788,  in  reply  to  Patrick  Henry, 
Marshall  answered  the  various  objections  urged 
against  the  Constitution.  He  begins  with  a  calm- 
ness, moderation,  and  judicial  temper  which  mark  the 
entire  speech.  "  I  conceive  that  the  object  of  the 
discussion  now  before  us  is  whether  democracy  or 
despotism  be  most  eligible.  I  am  sure  that  those 
who  framed  the  system  submitted  to  our  investigation, 
and  those  who  now  support  it,  intend  the  establish- 
ment and  security  of  the  former.  The  supporters  of 
the  Constitution  claim  the  title  of  being  firm  friends 
of  the  liberty  and  the  rights  of  mankind.  They  say 
that  they  consider  it  as  the  best  means  of  protecting 
liberty.  We,  sir,  idolize  democracy.  Those  who  op- 
pose it  have  bestowed  eulogiums  on  monarchy.  We 
prefer  this  system  to  any  monarchy,  because  we  are 
convinced  that  it  has  a  greater  tendency  to  secure  our 
liberty  and  promote  our  happiness.  We  admire  it, 
because  we  think  it  a  well-regulated  democracy." 

The    acts    of    Washington's    administration    after 
the   new    government   was    organized    were    bitterly 


36  ADDRESSES 

denounced.  The  ratification  of  Jay's  Treaty  with 
England  in  1795  excited  intense  opposition.  Con- 
stitutional objections  to  the  treaty  were  raised  and 
supported  by  powerful  arguments.  The  memorable 
speech  of  Marshall  in  the  Virginia  legislature,  in  de- 
fence of  the  constitutional  power  of  the  executive  to 
negotiate  commercial  treaties,  raised  him  into  national 
fame  as  a  statesman,  and  placed  him  among  the  fore- 
most leaders  of  the  Federal  Party. 

As  an  indication  of  the  popular  feeling  of  the  time, 
it  may  be  noticed  that,  upon  the  presentation  in  the 
legislature  of  a  resolution  expressing  confidence  in 
the  "  virtue,  patriotism,  and  wisdom  "  of  Washington, 
a  motion  to  strike  out  the  word  *'  wisdom  "  was  de- 
feated by  a  bare  majority.  "  Will  it  be  believed," 
exclaimed  Marshall,  "  that  the  word  was  retained  by  a 
very  small  majority.?  A  very  small  majority  in  the 
legislature  of  Virginia  acknowledged  the  wisdom  of 
General  Washington." 

It  was  about  this  time  that  Washington  tendered 
Marshall  the  office  of  Attorney-General  and  the  mis- 
sion to  France,  both  of  which  he  declined. 

In  consequence  of  Jay's  Treaty  with  England,  our 
relations  with  the  French  Republic  had  reached  a 
critical  stage;  and,  from  a  sense  of  patriotic  duty, 
Marshall  finally  accepted  the  appointment  of  Envoy 
to  France  in  conjunction  with  Pinckney  and  Gerry. 
During  this  trying  and  humiliating  mission  the  letters 


JOHN  MARSHALL  37 

addressed  to  Talleyrand  defining  and  defending  our 
country's  position  have  always  been  attributed  to 
Marshall's  pen.  They  aroused  the  warmest  praise, 
and  on  his  return  in  1798  he  received  ovations  in 
New  York  and  Philadelphia. 

Upon  resuming  the  practice  of  his  profession  in 
Virginia,  at  the  earnest  solicitation  of  Washington, 
who  was  filled  with  dark  forebodings  as  to  the  future 
of  the  country,  Marshall  became  a  candidate  for  Con- 
gress, after  declining  a  position  on  the  Supreme  Court 
tendered  him  by  President  Adams.  He  was  elected 
in  the  spring  of  1799.  Hardly  had  he  taken  his  seat 
a  few  months  later,  when  he  was  called  upon  to  an- 
nounce the  death  of  Washington.  "  Those  who  were 
present  on  the  occasion,"  says  Binney,  "  can  never 
forget  the  suppressed  voice  and  deep  emotion  with 
which  he  introduced  the  subject  on  the  following  day ; 
or  the  thrill  which  pervaded  the  House  at  the  con- 
cluding resolution." 

On  questions  which  related  to  the  Constitution, 
Marshall  was  the  acknowledged  leader  of  the  House. 
The  most  notable  debate  in  this  Congress  was  upon 
the  resolutions  of  Edward  Livingston,  censuring  the 
President  for  his  conduct  in  the  extradition  of  Jona- 
than Robbins.  This  executive  interference  was  vio- 
lently attacked  as  an  unconstitutional  exercise  of 
power.  The  speech  of  Marshall  in  reply  to  Living- 
ston, in  the  language  of  Judge  Story,  "settled  then 


38  ADDRESSES 

and  forever  the  points  of  national  law  upon  which  the 
controversy  hinged,"  and  "  is  one  of  the  most  consum- 
mate juridical  arguments  which  was  ever  pronounced 
in  the  halls  of  legislation." 

During  this  term  of  Congress  Marshall  was  ten- 
dered the  office  of  Secretary  of  War,  which  he  de- 
clined; and  subsequently,  the  office  of  Secretary  of 
State,  which  he  accepted.  The  latter  position  brought 
before  him  our  relations  with  foreign  countries,  and 
especially  with  England.  His  State  papers  upon  the 
various  questions  arising  out  of  the  execution  of  the 
British  Treaty,  which  had  threatened  to  interrupt 
the  peaceful  relations  of  the  two  countries,  were 
strong,  dignified,  and  diplomatic. 

While  serving  as  Secretary  of  State  he  was  nomi- 
nated by  President  Adams  for  Chief  Justice  ;  his 
nomination  was  unanimously  confirmed  by  the  Sen- 
ate;  and  he  was  commissioned  January  31,  1801. 
He  took  his  seat  on  February  4,  to  enter  upon  a 
career  the  most  remarkable  in  judicial  annals. 

Marshall  possessed  intellectual  powers  of  the  high- 
est order.  The  commanding  features  of  his  mind 
were  calmness,  penetration,  and  profound  wisdom. 
In  judicial  acquirements  he  was  not  the  equal  of  some 
of  his  contemporaries.  He  was  not  what  is  termed 
a  learned  man,  and  he  had  none  of  the  arts  of  an 
advocate.  He  relied  upon  the  original  powers  of  his 
mind,  and  not  upon  knowledge  gained  from  others. 


JOHN  MARSHALL  39 

He  worked  out  the  great  problems  of  constitutional 
jurisprudence  as  Newton  worked  out  the  great  prob- 
lems of  natural  science.  He  mastered  new  subjects 
by  his  powers  of  analysis  and  intuitive  perception 
of  the  truth.  "  He  seized,  as  it  were  by  intuition," 
says  Judge  Story,  "the  very  spirit  of  juridical  doc- 
trines, though  cased  up  in  the  armor  of  centuries ; 
and  he  discussed  authorities,  as  if  the  very  minds 
of  the  judges  themselves  stood  disembodied  before 
him." 

Marshall's  moral  nature  was  in  harmony  with  his 
intellectual.  His  affections  were  strong  and  pure. 
His  character  was  spodess.  It  is  said  he  never  had 
an  enemy.  The  affectionate  regard  which  bound 
others  to  him  in  his  youth,  and  during  his  long 
public  career,  became,  towards  the  closing  days  of  his 
life,  an  exalted  veneration.  His  nature  was  marked 
by  deep  sensibility  and  tenderness.  Speaking  of  his 
domestic  virtues,  Judge  Story,  in  his  beautiful  eulogy, 
declares :  "  After  all,  whatever  may  be  his  fame  in 
the  eyes  of  the  world,  that  which  in  a  just  sense  was 
his  highest  glory  was  the  purity,  affectionateness,  lib- 
erality, and  devotedness  of  his  domestic  life.  Home, 
home,  was  the  scene  of  his  real  triumphs." 

Though  distinguished  for  moderation  and  good 
temper,  he  was  immovable  in  his  performance  of 
judicial  duty.  The  trial  of  Aaron  Burr  is  an  illustra- 
tion of  his  firmness  and  impartiality  under  the  most 


40  ADDRESSES 

trying  circumstances.  The  country  was  convinced 
of  Burr's  guilt,  and  Marshall's  rulings  were  severely 
censured.  "  Marshall,"  exclaimed  Wirt,  "  has  stepped 
in  between  Burr  and  death."  But  the  great  Chief 
Justice  stood  unmoved  while  the  storm  of  passion 
and  prejudice  raged  about  him.  The  English  law 
of  treason,  he  declared,  had  not  been  imported  into 
the  Constitution.  Treason  under  the  Constitution 
consists  in  some  overt  act,  and  it  is  not  treason 
for  the  subject  to  "imagine  the  death  of  the  King." 
Marshall's  deepest  feelings  were  aroused  in  this 
memorable  trial.  Listen  to  these  words  :  "  That 
this  Court  dares  not  usurp  power  is  most  true.  That 
this  Court  dares  not  shrink  from  its  duty  is  not  less 
true.  No  man  is  desirous  of  placing  himself  in  a 
disagreeable  situation.  No  man  is  desirous  of  be- 
coming the  peculiar  subject  of  calumny.  No  man, 
might  he  let  the  bitter  cup  pass  from  him  without 
self-reproach,  would  drain  it  to  the  bottom.  But  if 
he  has  no  choice  in  the  case;  if  there  is  no  alterna- 
tive presented  to  him  but  a  dereliction  of  duty  or 
the  opprobrium  of  those  who  are  denominated  the 
world,  he  merits  the  contempt  as  well  as  the  indig- 
nation of  his  country  who  can  hesitate  which  to 
embrace." 

When  the  question  was  put  to  Wirt  after  the 
trial,  "  Why  did  you  not  tell  Judge  Marshall  that 
the   people   of   America    demanded   a  conviction  ? " 


JOHN  MARSHALL  41 

"  Tell  him  that ! "  was  the  reply.  "  I  would  as  soon 
have  gone  to  Herschel,  and  told  him  that  the  people 
of  America  insisted  that  the  moon  had  horns  as  a 
reason  why  he  should  draw  her  with  them." 

Marshall's  personal  traits  were  winning.  Nothing 
seemed  to  disturb  his  temper  or  equanimity.  His 
manners  on  the  bench  were  a  model  of  dignity,  sim- 
plicity, and  courtesy.  He  heard  the  arguments  of 
counsel  with  unsurpassed  patience  and  strict  atten- 
tion. "  The  gravity  of  the  judge  was  tempered  with 
the  courtesy  of  the  gentleman." 

An  English  traveller  gives  us  a  touching  picture 
of  the  Chief  Justice  during  his  last  days  :  "  The 
Judge  is  a  tall,  venerable  man,  about  eighty  years 
of  age,  his  hair  tied  in  a  queue  according  to  olden 
custom ;  and  with  a  countenance  indicating  that  sim- 
plicity of  mind  and  benignity  which  so  eminently 
distinguish  his  character.  His  house  is  small,  and 
more  humble  in  appearance  than  those  of  the  aver- 
age successful  lawyers  or  merchants.  I  called  three 
times  upon  him.  There  was  no  bell  to  the  door. 
Once  I  turned  the  handle  of  it  and  walked  in  unan- 
nounced. On  the  other  two  occasions  he  had  seen 
me  coming  and  had  lifted  the  latch  and  received  me 
at  the  door,  although  he  was  at  the  time  suffering 
from  some  very  severe  contusions  received  in  the 
stage  while  travelling  on  the  road  from  Fredericks- 
burg to  Richmond.     I  verily  believe  there  is  not  a 


42  ADDRESSES 

particle  of  vanity  in  his  composition."  Such  was 
the  man,  simple,  kindly,  great  —  the  noble  attributes 
of  true  manhood. 

Perhaps  no  tribute  after  his  death  is  more  beau- 
tiful than  is  expressed  in  the  words  :  "  The  fame  of 
the  Chief  Justice  has  justified  the  wisdom  of  the 
Constitution,  and  reconciled  the  jealousy  of  freedom 
to  the  independence  of  the  judiciary." 

The  affection  and  veneration  of  the  bar  are  feel- 
ingly shown  by  the  resolutions  adopted  by  the  Cir- 
cuit Court  of  Virginia,  which  declare  that  he  had 
presided  for  thirty-five  years  "with  such  modesty 
that  he  seemed  wholly  unconscious  of  his  own 
gigantic  powers;  with  such  equanimity,  such  benig- 
nity of  temper,  such  amenity  of  manners,  that  not 
only  none  of  the  judges  who  sat  with  him  on  the 
bench,  but  no  member  of  the  bar,  no  officer  of  the 
court,  no  juror,  no  witness,  no  suitor,  in  a  single 
instance,  ever  found  or  imagined,  in  anything  said 
or  done,  or  omitted  by  him,  the  slightest  cause  of 
offence." 

The  providence  of  God  has  been  made  manifest 
to  this  nation  "  in  raising  up  from  time  to  time  men 
of  pre-eminent  goodness  and  wisdom,"  —  Washing- 
ton, Lincoln,  Marshall,  each  fitted  for  his  special 
work.  The  name  and  services  of  Marshall  are  less 
known  because  what  he  did  lies  more  hidden  from 
the  eyes  of  men.     But  it  only  requires  examination 


JOHN  MARSHALL  48 

and  reflection  to  reveal  the  incalculable  value  of  his 
labors,  and  his  title  to  the  gratitude  of  his  country. 
In  the  beautiful  emblem  of  the  nation  which  hangs 
from  these  historic  walls  it  was  by  his  hand  the 
silken  threads  were  woven  into  the  folds  in  which 
are  set  and  held  forever  those  shining  stars. 

To  comprehend  Marshall's  work  we  must  stand 
upon  the  mountain  top  and  survey  the  nation;  its 
cluster  of  proud  States  stretching  from  ocean  to 
ocean;  its  groups  of  islands  encircling  the  sea;  its 
strings  of  great  cities ;  its  countless  towns  and  vil- 
lages, farms  and  homes;  its  temples  of  worship  on 
every  hillside,  whose  spires  are  the  first  to  greet  the 
morning  sun  at  his  coming;  its  schools  and  univer- 
sities; its  hospitals  and  charities;  its  commerce  and 
arts ;  its  science  and  invention ;  its  industries  and 
wealth,  —  the  whole  picture  of  national  life  which 
is  spread  before  our  vision. 

Behold  the  change!  We  are  no  longer  a  feeble 
confederation  of  colonies  fringing  the  Atlantic  coast; 
but  a  mighty  composite  Republic  standing  in  the 
front  rank  of  nations,  beckoning  the  poor  and  heavy- 
burdened  of  other  climes  to  this  home  of  material 
comfort,  civilization,  and  orderly  liberty ;  and  march- 
ing to  the  financial  and  commercial  supremacy  of  the 
world.  Our  political  system  is  no  longer  threatened 
by  discordant  or  belligerent  States,  but  we  behold 
a  loyal,  united,  and  enduring   Union,  —  the  highest 


44  ADDRESSES 

type  of  government,  a  Federal  Commonwealth  in 
its  perfect  form.  We  see  no  longer  a  weak  and 
struggling  national  spirit,  but  the  throb  of  seventy 
million  patriotic  hearts  as  the  Maine  sinks  beneath 
the  waters  in  Havana's  harbor.  The  symbol  of  our 
country's  power  is  no  longer  the  frigate  Constitu- 
tion, or  the  wooden  ships  of  Perry  built  in  a  night 
to  cross  an  inland  sea,  but  the  majestic  and  invin- 
cible Oregon,  traversing  two  oceans  from  Pacific's 
Golden  Gate  to  battle  for  the  oppressed  of  other 
lands  and  the  nation's  honor. 

As  we  enter  the  gateway  of  a  new  century  with 
hearts  overflowing  with  gratitude  to  Almighty  God 
for  our  unnumbered  national  blessings,  and  await- 
ing with  high  anticipation  and  conscious  strength 
the  grander  destiny  of  the  coming  years,  we  may 
well  pause  to  lay  our  wreath  of  laurel  on  the  un- 
crowned head  of  the  great  jurist  who  set  deep  and 
immovable  the  constitutional  pillars  on  which  the 
nation  rests. 


PROTECTION   OF   THE  PRESIDENT     45 


THE    PROTECTION   OF    THE    PRESIDENT 
OF   THE   UNITED  STATES 

Address  delivered  before  the  New  Hampshire  Bar  Association  at 
their  Annual  Meeting  at  Concord  on  March  3,  1902. 

Mr.  President  and  Members  of  the 

New  Hampshire  Bar  Association: 

A  SOLEMN  and  imperative  duty  has  fallen 
upon  the  country:  the  protection  of  the 
President  of  the  United  States.  The  sub- 
ject is  of  the  gravest  public  concern,  and  of  peculiar 
interest  to  our  profession. 

It  is  a  startling  commentary  on  our  vaunted  intel- 
ligence, progress,  and  security,  that  we  are  unable 
to  guard  the  life  of  one  individual  in  this  country, 
and  he  the  most  honored  and  best  beloved.  With 
millions  of  men,  as  our  recent  experience  revealed, 
ready  to  rise  at  a  moment's  warning  in  defence  of 
the  Republic ;  with  boundless  resources ;  with  armies 
and  navies  and  all  the  appliances  of  modern  warfare 
at  our  command ;  fearing  not,  in  our  conscious 
strength,  the  attack  of  any  foreign  foe ;  standing 
proud,  erect,  and  invincible  before  the  world,  —  we 
still  see  our  Chief  Magistrate  shot  down  with  the 
same  ease  that  a  highwayman  would  shoot  down  a 


46  ADDRESSES 

defenceless  traveller  on  the  public  way.  Something 
must  be  wrong  somewhere. 

There  is  no  conceivable  crime  so  atrocious  as  the 
causeless  murder  of  the  chosen  ruler  of  a  free  people. 
Such  crimes  rise  infinitely  higher  than  crimes  against 
the  individual.  They  are  crimes  against  humanity, 
civilization,  and  the  country's  life ;  against  society, 
law,  and  liberty.  They  are  a  blot  upon  free  insti- 
tutions, a  stain  upon  the  flag.  They  undermine  the 
happiness  and  well-being  of  the  people.  They  lower 
our  standing  and  character  in  the  opinion  of  man- 
kind. They  are  blows  aimed  at  the  Presidency  and 
self-government;  at  the  town-meeting,  the  State,  and 
the  nation;  at  all  our  institutions,  and  everything 
which  finds  expression  in  the  words  "  Our  Country." 

Has  our  fancied  security  indeed  proved  a  dream 
and  a  delusion.?  Has  our  boasted  liberty  become 
the  liberty  of  assassination.?  Is  this  the  end  of  the 
struggles,  the  sacrifices,  the  aspirations  of  the  people 
for  self-government?  Is  this  the  consummation  of 
the  long,  weary,  and  bloody  march  of  mankind  to 
this  fair  land  of  freedom.? 

The  record  is  appalling.  In  thirty-seven  years 
three  Presidents  have  been  assassinated,  an  average 
of  one  assassination  every  twelve  years.  The  world 
will  surely  hesitate  to  imitate  our  example  of  a  true 
democracy  if  this  record  be  long  continued.  The 
history  of  Europe   for  a   thousand    years    furnishes 


PROTECTION   OF  THE  PRESIDENT    47 

no  parallel.  To  find  one  we  must  go  back  to  the 
military  usurpers  of  ancient  Rome. 

During  these  comparatively  few  years  the  assassi- 
nations of  our  Chief  Magistrates  have  equalled,  if  not 
exceeded,  those  of  the  rulers  of  England  since  the 
Norman  conquest  in  1066,  and  of  France  during 
the  last  ten  centuries.  No  king  of  England  has  been 
assassinated  for  more  than  four  hundred  years,  and 
but  one  ruler  of  France  in  nearly  three  centuries. 

During  the  life  of  the  Federal  government,  a 
period  of  one  hundred  and  thirteen  years,  no  ruler 
of  England,  Germany,  or  Spain  has  suffered  death 
by  violence ;  France,  Italy,  and  Austria  have  each 
escaped  with  a  single  victim,  while  Russia  records 
but  two  instances. 

This  comparison  becomes  the  more  amazing  when 
we  consider  that  tyrannicide,  regicide,  and  religious 
fanaticism  have  been  among  the  principal  causes 
leading  to  the  assassination  of  European  rulers,  and 
that  these  causes  have  not  existed  here.  Nor  can  this 
striking  contrast  be  explained  by  reference  to  latter- 
day  anarchism,  for  at  most  only  one  of  the  four 
attempts  upon  the  lives  of  our  Presidents  can  be 
traced  to  that  cause. 

This  country  stands  arraigned  before  the  judgment- 
seat  of  civilized  nations  to  account,  if  possible,  for 
these  tragedies,  and  to  atone  for  them  by  the  adoption 
of  the  best  remedial  measures  which  can  be  devised. 


48  ADDRESSES 

We  know  that  complete  immunity  from  this  form  of 
assassination  is  impossible,  but  the  risk  should  be 
reduced  to  a  minimum.  There  must  at  least  be  an 
abatement  in  the  frequency  of  these  national  crimes. 

We  can  no  longer  plead  in  justification  our  supreme 
faith  in  a  free  people  and  democratic  institutions  as 
a  shield  against  such  attacks ;  nor  our  belief  that  no 
one  could  be  found  to  strike  down  the  citizen  chosen 
by  the  will  of  the  people  to  administer  their  own  laws 
by  acting  for  a  short  time  as  their  Chief  Magistrate. 
Nor  can  we  plead  that  we  could  comprehend  the 
assassination  of  the  Czar  of  Russia  because  he  was 
the  State,  or  the  assassination  of  the  King  of  Italy 
because  he  was  born  king,  or  the  assassination  of  any 
ruler  where  justice  was  denied  the  people  and  irrep- 
arable political  and  social  grievances  existed ;  but  that 
it  was  impossible  for  us  to  imagine  how  any  human 
being  should  wish  to  murder  Lincoln  or  Garfield  or 
McKinley,  who  sprang  from  the  people,  whose  lives 
were  consecrated  to  their  happiness  and  well-being, 
and  who  died  "  holy  victims  sacrificed  on  the  altar  of 
liberty."  We  must  now  acknowledge  our  experience 
has  shown  that  the  freest  government,  administered 
by  the  most  exalted  characters,  is  not  exempt  from 
this  form  of  assassination. 

Nor  can  we  insist  upon  the  violence  of  party  spirit 
inherent  in  a  democracy  as  the  cause,  and  cite  as  ex- 
amples Athens,  Venice,  and  Florence,  because  party 


PROTECTION   OF   THE   PRESIDENT     49 

struggles  will  not  account  for  the  frequency  of  these 
catastrophes;  and,  further,  our  political  institutions 
and  social  conditions  are  quite  unlike  those  of  any 
ancient  or  mediasval  republic. 

Nor  will  it  do  to  urge  too  strongly  in  defence  the 
inadequacy  of  our  laws,  either  punitive  or  preventive, 
because  it  appears  that  the  would-be  assassin  of  Presi- 
dent Jackson  was  speedily  tried  by  a  jury  and  found 
to  be  insane;  that  the  assassin  of  President  Lincoln 
was  quickly  traced  to  his  hiding-place  and  shot  to 
death  while  resisting  arrest;  that  the  assassin  of  Pres- 
ident Garfield  was  tried,  convicted,  and  executed; 
and  that  the  murderer  of  President  McKinley  met 
quick  retributive  justice  under  the  law.  So  likewise, 
with  respect  to  preventive  legislation,  it  may  be  said 
that  a  volume  of  such  laws  would  have  had  no  deter- 
rent effect  upon  the  insane  Lawrence  or  the  con- 
spirator Booth  or  the  unbalanced  Guiteau ;  and  if  the 
recent  diagnosis  of  Czolgosz's  condition  be  true,  it  is 
doubtful  to  what  extent  any  laws  would  have  operated 
to  prevent  this  attempt. 

We  may  perhaps  as  a  people  be  forgiven  for  the 
murder  of  Lincoln,  —  the  offspring  of  the  violent  pas- 
sions born  of  civil  war,  —  and  we  may  find  an  histori- 
cal parallel  in  the  murder  of  William  of  Orange  or 
Henry  IV  of  France;  but  the  recorded  annals  of 
mankind  will  be  searched  in  vain  to  find  a  parallel 
to  the  murders  of   Garfield  and  McKinley.     In  the 


50  ADDRESSES 

unavoidable  dangers  incident  to  the  high  ofSce  of 
President,  it  would  not  have  been  surprising  if  one 
of  our  Chief  Magistrates  had  met  a  violent  death ;  but 
the  gravity  of  the  charge  against  this  country,  and 
the  apparently  inexplicable  thing,  is  the  frequency 
of  the  crime  under  existing  circumstances.  It  would 
not  have  seemed  extraordinary  if  one  of  our  Presi- 
dents had  died  by  the  hand  of  a  conspirator,  an  insane 
person,  or  an  anarchist ;  but  what  is  astounding,  and 
seemingly  unaccountable,  is  that  Lincoln,  Garfield, 
and  McKinley  should  all  have  been  assassinated  within 
forty  years. 

This  phenomenon  must  be  accounted  for  in  some 
way.  There  must  be  a  cause  lying  hidden  some- 
where. Let  us  contrast  the  successful  and  unsuccess- 
ful attempts  upon  the  lives  of  our  Chief  Magistrates 
with  the  successful  and  unsuccessful  attempts  upon 
the  lives  of  foreign  rulers,  and  see  if  some  light  is 
not  thrown  upon  the  subject.  For  if  it  should  turn 
out  to  be  true  that  the  attempts  to  kill  our  Chief  Mag- 
istrates have  been  far  less  frequent  than  the  attempts 
to  kill  the  rulers  of  other  civilized  nations,  and  that  our 
trouble  is  owing  to  the  success  of  the  attempts  and 
not  to  their  number,  we  are  on  the  road  to  the  dis- 
covery of  the  true  cause  of  the  anomalous  situation 
of  this  country  respecting  these  political  crimes. 

From  1789  to  1902  there  have  been  four  attempts 
to  assassinate  the  Presidents  of  the  United  States,  as 


PROTECTION   OF   THE   PRESIDENT     51 

compared  with  ten  attempts  to  assassinate  the  rulers 
of  England  (exclusive  of  four  minor  assaults),  seven- 
teen attempts  to  assassinate  the  rulers  of  France, 
ten  attempts  to  assassinate  the  rulers  of  Russia; 
and  since  1850  five  attempts  to  assassinate  the 
rulers  of  Germany  (Prussia),  six  attempts  to  assas- 
sinate the  rulers  of  Spain,  four  attempts  to  assassi- 
nate the  rulers  of  Italy,  and  three  attempts  to 
assassinate  the  rulers  of  Austria.  This  list  is  with- 
out doubt  incomplete.  Moreover  it  does  not  include 
many  plots  and  conspiracies  which  were  discovered 
before  consummation.  The  comparatively  large  num- 
ber of  recorded  attempts  in  England  and  France  may 
be  due  to  the  effort  in  some  countries  to  suppress 
the  publication  of  such   events. 

This  comparison  discloses  this  astounding  result: 
Of  the  four  attempts  upon  the  lives  of  the  Presi- 
dents, three  have  been  successful,  or  seventy-five 
per  cent;  of  the  ten  attempts  upon  the  lives  of 
English  rulers,  none  have  been  successful;  of  the 
seventeen  attempts  upon  the  lives  of  the  rulers  of 
France,  only  one  has  been  successful,  or  about  six 
per  cent ;  of  the  ten  attempts  upon  the  lives  of 
the  rulers  of  Russia,  but  two  have  been  successful, 
or  twenty  per  cent.  And  since  1850,  of  the  five 
attempts  upon  the  lives  of  the  rulers  of  Germany 
(Prussia),  none  have  been  successful;  of  the  six 
attempts  upon  the  lives  of  the  rulers  of  Spain,  none 


52  ADDRESSES 

have  been  successful;  of  the  four  attempts  upon  the 
lives  of  the  rulers  of  Italy,  only  one  has  been  suc- 
cessful ;  and  of  the  three  attempts  upon  the  lives  of 
the  rulers  of  Austria,  but  one  has  been  successful. 

Limiting  this  comparison  to  the  attempts  since 
i860,  we  find  three  attempts  upon  the  lives  of  the 
Presidents,  as  compared  with  two  attempts  upon  the 
lives  of  the  rulers  of  England;  five  attempts  upon 
the  lives  of  the  rulers  of  France ;  eight  attempts 
upon  the  lives  of  the  rulers  of  Russia ;  three  attempts 
upon  the  lives  of  the  rulers  of  Germany;  four  at- 
tempts upon  the  lives  of  the  rulers  of  Spain;  three 
attempts  upon  the  lives  of  the  rulers  of  Italy;  and 
two  attempts  upon  the  lives  of  the  rulers  of  Austria. 
The  comparatively  small  number  of  attempts  in 
England  during  these  years  may  be  in  part  due  to 
the  almost  absolute  seclusion  of  Queen  Victoria  after 
the  death  of  Prince  Albert. 

This  comparison  gives  the  following  result:  Since 
i860  all  of  the  attempts  upon  the  lives  of  the  Presi- 
dents of  the  United  States  were  successful;  the  two 
attempts  upon  the  lives  of  English  rulers  were  un- 
successful ;  of  the  five  attempts  upon  the  lives  of 
the  rulers  of  France,  only  one  was  successful ;  of  the 
three  attempts  upon  the  lives  of  the  rulers  of  Ger- 
many, none  were  successful;  of  the  eight  attempts 
upon  the  lives  of  the  rulers  of  Russia,  but  one  was 
successful ;  of  the  three  attempts  upon  the  lives   of 


PROTECTION  OF  THE  PRESIDENT    53 

the  rulers  of  Italy  only  one  was  successful;  of  the 
four  attempts  upon  the  lives  of  the  rulers  of  Spain, 
none  were  successful;  and  of  the  two  attempts  upon 
the  lives  of  the  rulers  of  Austria,  but  one  was 
successful. 

Limiting  this  comparison  to  the  attempts  by 
anarchists,  in  which  the  country  is  now  deeply  con- 
cerned, we  find  in  the  past  forty  years  only  one  such 
attempt  upon  the  life  of  the  President,  as  compared 
with  three  attempts  upon  the  rulers  of  France,  six 
attempts  upon  the  rulers  of  Russia,  one  attempt  upon 
the  rulers  of  Germany,  two  attempts  upon  the  rulers 
of  Italy,  and  one  attempt  upon  the  rulers  of  Austria. 
The  result  of  these  attempts  was  as  follows :  The 
single  attempt  in  this  country  was  successful ;  the  sin- 
gle attempt  in  Austria  was  also  successful ;  the  single 
attempt  in  Germany  was  unsuccessful ;  of  the  three 
attempts  in  France,  but  one  was  successful ;  of  the 
six  attempts  in  Russia,  only  one  was  successful ;  and 
of  the  two  attempts  in  Italy,  but  one  was  successful. 

To  summarize:  Of  the  four  attempts  to  assassi- 
nate the  Presidents  of  the  United  States  since  the 
foundation  of  the  government  in  1789,  three  have 
been  successful,  or  seventy-five  per  cent ;  of  the  fifty- 
five  attempts  to  assassinate  the  rulers  of  Europe  in 
the  countries  above  mentioned  since  1789,  only  five 
have  been  successful,  or  about  nine  per  cent.  Since 
i860,  of  the  three  attempts  to  assassinate  the  Presi- 


54  ADDRESSES 

dents  of  the  United  States,  three  have  been  success- 
ful, or  one  hundred  per  cent;  of  the  twenty-seven 
attempts  to  assassinate  the  rulers  of  Europe  in  the 
countries  above  mentioned,  only  four  have  been  suc- 
cessful, or  fifteen  per  cent.  The  single  attempt  by 
anarchists  to  assassinate  the  President  of  the  United 
States  has  been  successful ;  and  of  the  thirteen 
attempts  by  anarchists  to  assassinate  the  rulers  of 
the  European  countries  above  mentioned,  only  four 
have  been  successful,  or  thirty  per  cent. 

In  this  comparison  between  the  attempts  in  this 
country  and  in  European  countries,  it  should  be 
remembered  that  the  personal  protection  afforded 
European  rulers  undoubtedly  prevented  many  attacks 
which  otherwise  would  have  occurred.  The  circum- 
stance that  a  ruler  is  openly  guarded  has  a  marked 
deterrent  effect  upon  assaults  of  this  nature.  It  is 
safe,  perhaps,  to  say  that  the  life  of  no  one  of  the 
European  rulers  I  have  mentioned,  excepting  possi- 
bly that  of  England,  under  the  existing  political 
and  social  conditions  in  his  country,  would  be  safe 
for  a  single  year  if  he  exposed  himself  to  the  same 
extent  as  the  President  of  the  United  States. 

This  wide  difference  between  the  success  and 
failure  of  the  attempts  upon  the  lives  of  the  rulers 
in  this  country  and  in  Europe  can  be  accounted 
for  only  upon  the  theory  of  the  absence  of  safe- 
guards surrounding  the  President,  and  his  consequent 


PROTECTION   OF   THE   PRESIDENT     55 

exposure  to  attack.  Had  the  would-be  assassins  of 
England's  rulers  since  Washington  took  his  seat  ac- 
complished their  object  with  the  same  ease  as  in  this 
country,  in  all  human  probability  the  number  of  vic- 
tims would  have  been  more  than  double  the  number 
of  our  martyred  Presidents;  and  in  France  the  num- 
ber would  have  been  four  times  as  great.  Had  the 
number  of  assassinations  in  England,  in  proportion 
to  the  attempts,  been  the  same  as  in  this  country, 
the  number  of  victims  would  have  been  seven,  while 
in  France  the  number  would  have  been  twelve.  This 
demonstrates  that  the  difference  between  our  country 
and  other  countries  lies  in  the  fatality  of  the  attempts, 
and  not  in  the  number.  Not  only  does  the  United 
States  favorably  compare  with  England  and  France 
in  respect  to  these  attempts  at  assassination,  but  in 
point  of  fact  there  have  been  more  than  double  the 
number  of  attempts  in  England  and  more  than  four 
times  the  number  of  attempts  in  France,  since  the 
organization  of  the  Federal  government.  It  follows 
that  this  country  would  have  been  comparatively  free 
from  these  tragedies  if  reasonable  precautions  had 
been  taken  to  protect  the  person  of  the  President; 
and  that  it  is  not  so  vital  to  guard  against  attempts 
at  assassination  as  to  prevent  such  attempts  from 
proving  fatal,  by  the  exercise  of  reasonable  care  on 
the  part  of  the  President  himself,  and  by  affording 
Jiim  proper  means  of  protection. 


56  ADDRESSES 

Following  this  line  of  inquiry  into  some  of  the 
details  of  the  four  attempts  upon  the  lives  of  our 
Chief  Magistrates,  it  will  be  found  that  three  were 
successful  owing  to  the  absence  of  ordinary  safe- 
guards, and  that  the  fourth  would  have  been  equally 
fatal  had  not  the  weapons  missed  fire  from  some 
almost  miraculous  cause. 

The  would-be  assassin  of  President  Jackson  was 
permitted  to  approach  within  a  few  feet  of  his  per- 
son, and  deliberately  attempt  to  discharge  two  pis* 
tols;  the  assassin  of  President  Lincoln  entered  the 
theatre  box  where  the  President  was  sitting,  quietly 
barred  the  door  behind  him,  and  held  his  weapon 
within  a  few  inches  of  the  head  of  his  victim ;  the 
assassin  of  President  Garfield  approached  from  be- 
hind to  within  a  few  feet  of  his  person,  fired  one 
shot,  and  then,  unmolested,  took  deliberate  aim  and 
discharged  the  fatal  bullet ;  and  the  assassin  of  Pres- 
ident McKinley  held  his  pistol  at  the  President's 
breast. 

Had  the  portico  of  the  Capitol  been  properly 
watched  as  the  President  passed  along,  the  wpuld-^ 
be  slayer  of  Jackson,  who  for  some  time  had  been 
walking  about  unnoticed,  would  have  been  appre- 
hended ;  had  the  entrance  to  the  box  in  Ford's  The- 
atre been  protected  against  intruders,  Lincoln  would 
not  have  been  shot ;  had  there  been  some  person  on 
watch  to  observe  the  approach  of  Guiteau  as  the  Pres- 


PROTECTION   OF   THE   PRESIDENT     57 

ident  and  Mr.  Blaine  walked  unattended  through  the 
waiting-room  of  the  railway  station  on  that  fatal  July 
morning,  Garfield  would  not  have  been  stricken  down ; 
and  had  it  not  been  the  custom  for  the  President,  on 
all  public  occasions,  freely  to  shake  hands  with  large 
crowds  of  people,  or  had  such  hand-shaking  been 
conducted  under  proper  regulations  and  precautions, 
McKinley  would  have  been  alive  to-day. 

These  considerations  strongly  confirm  the  view 
that  the  number  and  frequency  of  our  national 
tragedies  are  not  due  to  the  prevalence  of  a  spirit 
of  assassination,  but  spring  from  our  over-confidence 
and  want  of  caution ;  and  that  the  most  effective 
remedy  lies  in  keeping,  as  far  as  possible,  suspicious 
persons  at  a  safe  distance  from  the  President. 

If  the  real  cause  of  these  oft-repeated  catastrophes 
be  traced  to  this  source,  the  situation  must  be 
recognized  and  met  by  the  exercise  of  the  same 
intelligence,  common  sense,  and  sound  judgment 
which  have  ever  characterized  the  American  people 
in  dealing  with  grave  public  matters. 

The  sentimental  notion  that,  because  we  are  a 
democracy  and  the  people  have  been  accustomed 
freely  and  on  all  occasions  to  meet  their  Chief 
Magistrate,  it  would  be  unrepublican  and  savor  of 
royalty  to  impair  this  time-honored  custom,  must 
not  stand  in  the  way  where  the  life  of  the  Presi- 
dent is  at  stake. 


58  ADDRESSES 

If  the  universal  experience  of  other  civilized 
peoples,  confirmed  by  our  recent  history,  teaches 
that  the  safety  of  the  Head  of  the  State  is  depend- 
ent upon  surrounding  his  person  with  proper  safe- 
guards, it  is  folly  for  this  country  to  ignore  this 
fact  on  the  imaginary  ground  that  we  are  a  chosen 
people,  and  an  exception  to  all  ordinary  laws. 

The  conditions  which  might  have  rendered  it 
reasonably  safe  for  the  President  to  mingle  openly 
with  the  people  in  the  early  days  of  the  Republic 
are  changed,  and  we  must  adapt  ourselves  to  the 
new  environment.  There  is  a  great  difference  be- 
tween a  sparsely  settled  country,  consisting  largely 
of  agricultural  communities,  with  slow  and  difficult 
means  of  communication,  and  a  country  inhabited 
by  many  millions  of  people  of  different  nationalities, 
with  the  railway,  the  telegraph,  and  the  telephone, 
and  with  the  conflicting  social  forces  of  the  latter 
part  of  the  nineteenth  century.  In  a  few  days,  his 
coming  having  been  freely  advertised,  the  President 
may  travel  from  ocean  to  ocean,  and  come  in  con- 
tact with  a  third  of  the  population  of  the  country; 
and  the  same  facilities  for  the  annihilation  of  space 
and  time  are  afforded  the  would-be  assassin.  "  New 
occasions  teach  new  duties;  time  makes  ancient 
good   uncouth." 

The  bill  recently  reported  to  the  United  States 
Senate   from    the   Judiciary   Committee   by   Senator 


PROTECTION   OF   THE   PRESIDENT     59 

Hoar  is  certainly  a  movement  in  the  right  direction. 
By  section  7  of  the  bill,  "  The  Secretary  of  War 
is  authorized  and  directed  to  select  and  detail  from 
the  Regular  Army  a  sufficient  number  of  officers 
and  men  to  guard  and  protect  the  person  of  the 
President  of  the  United  States  without  any  un- 
necessary display."  If  this  provision  should  be 
supplemented  by  the  appropriation  of  a  sum  of 
money,  to  be  at  the  disposal  of  the  President  for 
the  purpose  of  securing  additional  police  protec- 
tion,  it   would   be   a  further   aid. 

It  is  said  that  the  President  of  the  French 
Republic  does  not  attend  public  meetings,  speak 
from  the  platforms  of  railway  cars,  move  around  in 
an  approachable  and  conspicuous  way  at  fairs  and 
expositions,  or  hold  open  levees  for  the  shaking  of 
hands. 

As  supplementary  to  the  above  legislation,  if  the 
President  should  exercise,  so  far  as  practicable,  the 
same  precautions,  the  risk  would  be  still  further 
reduced.  The  visible  guard  surrounding  the  Pres- 
ident of  itself  would  have  a  tendency  to  prevent 
these  attacks.  It  is  a  somwhat  significant  fact 
in  this  connection,  that  no  assault  has  ever  been 
attempted  upon  the  President  in  the  White  House, 
where  reasonable  precautions  are  taken. 

The  situation  does  not  demand  that  our  Chief 
Magistrate    shall    travel    from    place   to   place   with 


60  ADDRESSES 

the  military  pomp  of  some  European  rulers  or 
with  the  gorgeous  pageantry  of  Queen  Elizabeth; 
but  it  does  demand  that  he  shall  be  accompanied 
by  reasonable  safeguards,  appropriate  to  the  sim- 
plicity  and   dignity   of   republican    institutions. 

Since  the  death  of  President  McKinley,  the 
thoughts  of  the  people  and  of  Congress  have  been 
mostly  occupied  in  the  consideration  of  measures 
for  the  prevention  of  these  attempts  rather  than  in 
the  means  for  guarding  against  their  fatality.  The 
difficulty  of  preventing  attempts  through  legislation, 
except  in  the  particular  already  mentioned,  is  that 
the  subject  in  a  large  measure  lies  beyond  the 
control  of  laws.  When  we  consider  the  class  of 
persons  who  commonly  make  these  assaults,  it  will 
be  found  that  the  laws  have  little  deterrent  effect 
upon  them.  Let  us  take,  for  illustration,  this 
country  and   England. 

Of  the  ten  attacks  upon  the  lives  of  English 
rulers  since  1789,  four  were  by  persons  pronounced 
insane;  three  by  persons  unknown,  who  fired  from 
a  distance;  and  two  of  the  remaining  three,  from 
the  nature  of  the  assaults,  were  seemingly  by  per- 
sons acting  under  the  impulse  of  some  imaginary 
wrong.  In  the  case  of  the  six  assaults  on  Queen 
Victoria,  three  were  manifestly  by  insane  persons ; 
and  it  is  questionable  if  more  than  one  out  of  the 
six  was  by  a  person  of  sound  mind. 


PROTECTION  OF  THE  PRESIDENT    61 

In  this  country  we  find  that  the  would-be  assassin 
of  President  Jackson  was  pronounced  hopelessly  in- 
sane by  a  jury  after  five  minutes'  deliberation,  that 
the  assassin  of  President  Garfield  is  universally  ad- 
mitted to  have  had  an  unbalanced  mind,  and  that 
the  medical  world  is  now  divided  on  the  subject  of 
the  sanity  of  the  slayer  of  President  McKinley.  The 
conclusion  reached  by  Dr.  Channing,  after  careful 
investigation  of  this  person's  life,  habits,  and  antece- 
dents, raises  a  strong  doubt,  at  least,  respecting  his 
mental  condition.  Dr.  Channing's  diagnosis  indi- 
cates mental  impairment,  which  assumed  the  form 
of  delusions;  the  exciting  causes  of  the  act  being 
the  reading  of  anarchistic  literature  and  attending 
anarchistic  meetings.  The  assassin  of  President 
Lincoln  alone  forms  an  exception  to  the  general 
type.  In  that  instance  the  attack  w^as  the  outcome 
of  a  political  conspiracy. 

We  find,  then,  that  in  England  these  assaults 
have  been  largely  mad  attempts;  and  that  in  this 
country  there  have  been  two  mad  attempts,  a  third  in 
the  nature  of  a  mad  attempt  inspired  by  anarchistic 
teachings,  and  a  fourth  the  outgrowth  of  political 
strife.  It  is  plain  that  no  laws  would  have  checked 
the  insane  Lawrence,  who  imagined  that  he  had  been 
wrongfully  deprived  of  the  crown  of  England;  or 
the  conspirator  Booth;  or  the  unhinged  Guiteau, 
who,  brooding  over  his  failure   to  obtain  office,  be- 


62  ADDRESSES 

came  possessed  of  a  mad  desire  to  become  the  cyno- 
sure of  all  eyes;  or  the  morbid  Czolgosz,  incited  by 
anarchistic  teachings  —  unless  possibly  our  laws  had 
prevented  anarchism  from  crossing  the  Atlantic. 

Fundamentally,  this  form  of  assassination  is  the 
result  of  environment.  The  disease  is  too  deep- 
seated  for  legislative  cure.  We  are  confronted  with 
two  associated  causes  which  cannot  be  eradicated: 
the  social  and  industrial  conditions  of  modern  so- 
ciety, and  the  unbalanced  mind,  —  the  extremes  of 
wealth,  power,  ease,  and  lavish  luxury  on  the  one 
hand,  and  poverty,  ignorance,  misery,  and  the  strug- 
gle for  existence  on  the  other,  in  a  society  which 
also  contains  the  diseased  brain,  the  dethroned  rea- 
son, homicidal  mania;  the  victim  of  the  delusion  of 
imaginary  wrongs  to  himself,  his  class,  or  his  nation- 
ality; the  would-be  suicide,  who  thinks  if  he  kills  a 
ruler  monuments  will  be  erected  to  his  memory ;  the 
degenerate,  the  fanatic,  and  the  criminal.  So  long 
as  these  social  conditions  exist  we  shall  not  be  free 
from  attempts  to  assassinate  our  Chief  Magistrate. 

But  we  may  still  ask,  will  not  some  general  remedial 
legislation  by  Congress  help  the  situation?  With  re- 
spect to  mad  attempts,  which  are  the  most  common, 
or  attempts  resulting  from  political  conspiracy,  it  is 
doubtful  if  additional  legislation  other  than  that  which 
concerns  the  personal  protection  of  the  President 
would  prove  in  any  considerable  degree  effective. 


PROTECTION   OF   THE   PRESIDENT     63 

We  have  had  but  one  attempt  in  the  nature  of  a 
political  conspiracy,  which  arose  under  exceptional 
circumstances;  and  it  may  be  said  that  we  are  rea- 
sonably safe,  for  the  present,  from  any  attempt  of  this 
character.  There  never  was  a  time  in  the  history  of 
this  or  any  other  country  when  the  affections  of  the 
people  for  their  government  and  their  Chief  Magis- 
trate were  so  strong  and  all-pervading.  Grave  and 
perilous  political  questions  like  slavery  and  the  right 
of  secession  no  longer  rouse  the  violent  passions  of 
the  people  and  divide  the  country  into  hostile  camps. 

We  must  not,  however,  place  too  much  confidence 
in  the  continuation  of  the  existing  state  of  affairs. 
The  danger  of  a  disputed  succession  to  the  Presi- 
dency, such  as  existed  in  1876,  cannot  be  ignored. 
This  is  a  danger  inherent  in  our  electoral  system,  and 
is  the  weak  spot  in  our  Federal  form  of  government. 

Nor  must  we  overlook  the  possible  consequences  of 
a  conflict  between  labor  and  capital  under  present  in- 
dustrial methods.  It  is  an  economic  law  that  periods 
of  general  financial  depression  occur  about  every 
twenty-five  years ;  and  if  the  situation  during  one  of 
these  crises  should  be  aggravated  by  a  shortage  of 
crops,  it  might  produce  conditions  which  lead  to  po- 
litical conspiracies.  But  no  such  situation  seems  near 
at  hand ;  and  we  may  rest  reasonably  secure  against 
attacks  upon  the  life  of  the  President  springing  from 
any  such  cause. 


64  ADDRESSES 

The  assassinations  which  have  startled  the  world 
during  the  past  ten  years  have  been  by  anarchists, 
and  the  most  universally  beloved  President  in  our 
history  has  fallen  a  victim.  This  great  sorrow  still 
overshadows  the  country,  and  the  people  are  waiting, 
hoping,  praying,  that  Congress  will  in  some  way 
shield  the  nation  from  such  tragedies  in  the  future. 
It  is  a  most  difficult  crisis  to  meet.  We  have  already 
pointed  out  that  the  field  of  effective  legislation  on 
this  subject  is  limited ;  at  the  same  time  such  laws  as 
we  believe  will  prove  beneficial  should  be  speedily 
enacted. 

The  present  danger  is  not  so  much  from  anarchistic 
conspiracies  hatched  by  any  of  the  known  groups  of 
anarchists,  as  from  some  morbid  individual  who  feels 
that  he  must  become  the  executioner  of  anarchy,  — 
the  most  dangerous  criminal  known  to  history. 

It  is  fifteen  years  since  August  Spies  and  others 
were  executed.  Had  any  of  the  groups  of  Chicago 
anarchists,  in  revenge  for  their  death,  planned  to 
assassinate  the  President,  many  opportunities  would 
not  have  been  wanting.  President  Carnot,  Empress 
Elizabeth,  and  King  Humbert  have  all  been  assassi- 
nated by  some  member  of  a  group  of  Italian  anar- 
chists. A  branch  of  this  group  is  located  in  Paterson, 
New  Jersey,  and  Bresci  went  from  there  on  his  mis- 
sion to  kill  the  King  of  Italy.  Had  this  group  in- 
cluded among  its   intended  victims  the  President  of 


PROTECTION   OF   THE   PRESIDENT     65 

the  United  States,  the  accomplishment  of  that  purpose 
at  any  time  would  have  been  an  easy  task. 

It  is  undoubtedly  true  that  free  institutions  afford 
some  measure  of  protection  against  these  attacks, 
and  that  they  have  been  mainly  directed  against  the 
rulers  of  European  countries,  owing  to  different  polit- 
ical and  social  conditions.  But  still  our  recent  expe- 
rience has  taught  that  the  freest  government  is  not 
exempt  from  this  danger,  and  that  we  must  guard 
against  it  in  every  possible  way.  It  is  also  true  that 
the  wisdom  of  extreme  repressive  measures  is  doubt- 
ful. The  experience  of  Spain  and  other  countries  has 
shown  that  drastic  legislation  has  always  been  fol- 
lowed by  renewed  attempts  of  a  more  deadly  and 
violent  kind. 

The  type  of  anarchists  who  seek  to  enforce  their 
doctrine  by  assassination  discloses  difficulties  in  the 
way  of  meeting  the  situation  by  laws.  These  indi- 
viduals may  be  classed  in  the  same  category  with 
those  who  make  what  are  known  as  *'  mad  attempts  " 
upon  the  Head  of  the  State.  According  to  Regis, 
they  are  the  typical  regicides  or  magnicides,  who  have 
existed  from  remote  antiquity.  They  are  fanatics 
with  minds  tainted  by  insanity,  eccentricity,  epilepsy, 
and  suicidal  impulse.  We  are  not  here  referring  to 
the  revolutionary  anarchists  as  a  body,  but  to  the 
particular  type  who  execute  these  deeds  of  violence 
and   death.     Professor  Lombroso,  of   the   University 

5 


66  ADDRESSES 

of  Turin,  as  the  result  of  his  researches,  finds  that  a 
large  number  of  this  particular  type  of  anarchists  are 
madmen  and  criminals.  Some  who  had  attempted 
assassination  were  epileptics;  others  were  victims  of 
alcoholism ;  others  were  indirect  suicides,  rejoicing 
at  the  opportunity  of  being  put  to  death  for  the 
murder  of  a  ruler;  others  were  partially  demented, 
imagined  themselves  persecuted,  and  were  carried 
away  by  a  violent  impulse  for  assassination.  In  no 
case  have  they  been  known  to  have  had  accomplices. 
They  "  are  almost  always  alone  in  concealing,  pre- 
paring, and  accomplishing  their  deeds,  being  unwill- 
ing to  have  anyone  share  with  them  the  merits  and 
honors." 

It  is  hard  to  reach  this  type  of  anarchist  by  leg-^ 
islation.  He  is  not  easily  discovered  in  the  country, 
nor  easily  kept  out.  It  is  said  that  the  leader  of  an 
Italian  group  of  revolutionary  anarchists  travels  from 
country  to  country  at  will. 

The  exciting  causes  which  lead  to  assassination  by 
this  type  of  anarchist  are  anarchistic  books,  pam- 
phlets, papers,  and  attendance  upon  gatherings  of 
revolutionary  anarchists.  Although  we  have  now 
reached  a  field  where  legislation  may  help,  a  mo- 
ments consideration  will  show  the  difficulties  that 
are  encountered. 

Anarchy,  or  anarchism,  is  a  broad  term.  There  is 
philosophical  anarchism  and  revolutionary  anarchism ;, 


PROTECTION  OF  THE  PRESIDENT    m 

and  there  are  philosophical  anarchists,  revolutionary 
anarchists,  and  the  anarchists  of  terror. 

Philosophical  anarchism,  which  is  beyond  legisla- 
tive control,  is  a  theory  of  social  life  based  upon  an 
ethical  view  of  human  relations.  It  is  the  philoso- 
pher's dream  of  a  perfect  state  of  society  composed 
of  perfect  human  beings.  It  signifies  that  if  every- 
body did  what  was  right  there  would  be  no  need 
of  government.  It  is  "individualism  run  mad."  Its 
falsity  is  based  upon  the  assumed  premise  of  perfec- 
tion of  humanity.  Many  thinkers  believe  it  is  the 
goal  which  society  should  strive  to  reach  and  which 
eventually  will  be  attained.  In  a  purely  ethical  sense, 
some  of  our  greatest  philosophers  may  be  classed  as 
anarchists. 

Anarchy  is  the  antithesis  of  government.  It  is 
society  without  government.  It  denies  the  utility 
of  all  government.  It  calls  for  a  state  of  absolute 
individual  liberty  and  equality.  "All  institutions  — 
economic,  ethical,  religious,  or  political  —  that  in  any 
sense  circumscribe  or  limit  the  equality,  freedom, 
and  liberty  of  men  as  individual  units  are,  therefore, 
an  evil  to  be  eradicated."  "  Free  democratic  govern- 
ments are  no  better  than  despotic  monarchies."  It 
ascribes  all  the  evils  of  society  to  law  and  govern- 
ment. As  some  reformers  attribute  social  evils  to 
ignorance  or  other  causes,  the  anarchist  attributes 
them   to   government,   and   proposes   "  the   abolition 


68  ADDRESSES 

of  all  law,  government,  and  authority  as  a  universal 
panacea." 

If  the  writers  on  anarchism  limited  their  lan- 
guage to  the  legitimate  discussion  of  their  theory 
of  society,  the  State  could  not  well  complain;  but 
such  is  not  the  fact.  In  Proudhon,  Bakunin,  Kro- 
potkin,  and  other  writers,  are  found  thoughts  and 
expressions  which  incite  to  violence,  and  which  pro- 
voke the  writings  and  pamphlets  of  the  radical 
revolutionary  anarchists.  We  may  cite  a  few  ex- 
amples of  their  teachings  and  maxims : 

"Governments  are  the  scourge  of  God." 

"  Property  is  robbery." 

"  Theft  is  the  recovery  by  violence  from  the  rich 
of  that  which  the  rich  have  taken  by  violence  from 
the  poor." 

"Appropriation  by  force  must  be  the  anarchists! 
prelude  to  the  wholesale  insurrection  which  they  will 
sooner  or  later  enact." 

"  Law  has  no  title  to  the  respect  of  men.  Born  of 
violence  and  superstition,  and  established  in  the  in- 
terests of  the  consumer,  priest,  and  rich  exploiter,  it 
must  be  utterly  destroyed  on  the  day  when  the  people 
desire  to  break  their  chains." 

"  No  more  laws !  No  more  judges !  Liberty, 
equality,  and  practical  human  sympathy  are  the  only 
effectual  barriers  we  can  oppose  to  the  anti-social 
instincts  of  certain  among  us." 


PROTECTION   OF   THE   PRESIDENT     69 

Such  ideas  taken  up  by  the  extreme  revolutionary 
anarchists  lead  to  the  expression  of  such  sentiments 
as  the  following : 

"  Our  only  hope  is  in  earnest,  organized  action. 
Burn,  kill,  and  destroy  until  we  force  the  autocrats  to 
turn.  We  have  lost  hope  in  God,  hope  in  humanity, 
and  hope  in  the  world  at  large.  Let  every  man  do 
his  duty.  This  is  a  time  when  the  workingman  will 
either  become  a  slave  or  a  master.  Choose  between 
the  two,  and  choose  at  once.  Let  us  give  no  quarter, 
and  ask  none ;  only  let  us  stand  by  each  other,  and 
each  man  at  his  post.  If  we  must  die,  let  us  die  like 
men,  and  not  slaves." 

By  a  process  of  evolution  we  are  conducted,  step 
by  step,  from  the  theory  of  anarchy  through  anar- 
chistic literature  to  revolutionary  anarchy  and  its 
literature  of  violence,  and  thence  to  the  anarchy  of 
terrorism  and  its  executioner,  the  typical  regicide. 

Although  anarchistic  literature  is  in  our  public 
libraries,  and  anarchists  are  with  us,  there  can  be  no 
question  of  the  power  of  the  State  to  forbid  the  pub- 
lication and  circulation  of  writings  calculated  to  incite 
to  violence  and  murder,  and  to  forbid  the  assemblage 
of  persons  for  the  purpose  of  instigating  and  advis- 
ing violence  and  murder.  The  constitutional  right 
of  free  speech  cannot  here  be  invoked.  Free  speech 
is  a  no  more  sacred  right  than  self-protection.  Free 
speech  does  not  mean  the  right  to  take,  or  to  incite 


70  ADDRESSES 

the  taking  of,  the  life,  property,  or  reputation  of 
another. 

All  personal  rights  are  reciprocal  and  mutually 
binding,  and  are  enjoyed  upon  the  condition  of  re- 
specting the  enjoyment  of  the  same  rights  by  others ; 
and  the  purpose  of  the  law  is  the  enforcement  of  these 
mutual  obligations.  Without  invoking  the  broader 
and  more  elastic  rule  that  free  speech  may  be  re- 
strained respecting  acts  which  are  inimical  to  the 
peace,  good  order,  and  morals  of  a  community,  its 
restriction  here  rests  upon  the  fundamental  doctrine 
of  personal  rights  and  obligations. 

Revolutionary  anarchists  should  be  prohibited  by 
severe  penal  laws  from  uttering,  writing,  or  publishing 
language  threatening,  advising,  or  instigating  the  kill- 
ing of  the  President,  or  advising  or  instigating  an- 
other to  kill  the  President,  or  conspiring  with  others 
to  kill  the  President. 

The  comprehensive  and  carefully  drawn  bill  of 
Senator  Hoar,  from  which  we  have  already  cited 
one  provision,  covers  this  whole  branch  of  the  sub- 
ject. It  punishes  wath  death  any  person  who,  within 
the  jurisdiction  of  the  United  States,  shall  wilfully 
kill  or  cause  the  death  of  the  President  or  Vice- 
President  of  the  United  States,  or  any  officer  thereof 
upon  whom  the  powers  and  duties  of  the  President 
may  devolve,  or  who  shall  wilfully  cause  the  death 
of  the  sovereign  or  chief   magistrate  of  any  foreign 


PROTECTION   OF   THE   PRESIDENT    71 

country ;  and  the  same  penalty  is  inflicted  upon 
any  persons  who  shall  attempt  to  commit  either  of 
these  offences.  It  punishes  by  a  term  of  imprison- 
ment not  exceeding  ten  years  any  person  who,  within 
the  jurisdiction  of  the  United  States,  shall  instigate, 
advise,  or  counsel  the  killing  of  the  President  or 
Vice-President  of  the  United  States,  or  any  officer 
thereof  upon  whom  the  powers  and  duties  of  the 
President  may  devolve,  or  who  shall  conspire  with 
any  other  person  to  accomplish  the  same,  or  who 
shall  instigate,  advise,  or  counsel  the  killing  of  the 
sovereign  or  chief  magistrate  of  any  foreign  country, 
or  shall  conspire  with  any  other  person  to  accom- 
plish the  same.  It  punishes  by  imprisonment  not 
exceeding  ten  years  any  person  who  shall,  within  the 
jurisdiction  of  the  United  States,  by  spoken  words, 
.or  by  written  or  printed  words,  uttered  or  published, 
threaten  to  kill,  or  advise  or  instigate  another  to 
kill,  the  President  or  Vice-President  of  the  United 
States,  or  any  officer  thereof  upon  whom  the  powers 
and  duties  of  the  President  may  devolve.  It  fur- 
ther provides  that  any  person  so  conspiring  may  be 
indicted  and  convicted  separately,  although  the  other 
party  or  parties  to  the  conspiracy  are  not  indicted 
or  convicted ;  and  that  any  person  who  shall  wilfully 
and  knowingly  aid  in  the  escape  from  punishment 
of  any  person  guilty  of  any  of  the  above  offences 
shall  be  deemed  an   accomplice  after  the   fact,   and 


72     •  ADDRESSES 

shall  be  punished  as  if  a  principal,  although  the 
other  party  or  parties  to  the  offence  shall  not  be 
indicted  or  convicted. 

It  will  be  observed  that  this  bill  includes  not  only 
the  President,  but  the  Vice-President  and  other  per- 
sons in  the  line  of  succession  to  that  high  office,  as 
well  as  the  heads  of  foreign  States.  These  additional 
provisions  are  important  and  necessary.  Civilization 
and  the  comity  of  nations  forbid  that  this  country 
should  become  the  vantage-ground  for  conspiracies 
to  kill  foreign  rulers.  We  should  prevent  by  law, 
so  far  as  possible,  assassins  taking  up  their  abode 
in  this  country  mainly  for  the  purpose  of  crossing 
the  Atlantic  at  a  convenient  and  opportune  time  to 
assassinate  a  foreign  ruler. 

Although  no  person  who  has  attempted  to  assassi- 
nate the  President  of  the  United  States  has  escaped 
justice,  our  present  Federal  laws  are  manifestly 
defective  and  inadequate  in  that  they  make  no  pro- 
vision for  the  punishment  of  persons  who  kill,  or 
attempt  to  kill,  the  Chief  Magistrate.  Had  President 
McKinley  been  shot  in  Rhode  Island  or  Maine,  or  in 
any  other  State  where  capital  punishment  has  been 
abolished,  the  punishment  of  the  assassin  would  have 
been  limited  to  imprisonment  for  life.  Had  the 
assault  on  the  President  not  proved  fatal,  the  max- 
imum penalty  for  his  would-be  murderer,  under  the 
laws  of  New  York,  would  have  been  but  ten  years. 


PROTECTION   OF  THE  PRESIDENT    73 

There  is  no  doubt  of  the  power  of  Congress, 
under  the  Constitution,  to  make  laws  for  the  pro- 
tection of  foreign  rulers  and  ambassadors,  because 
this  subject  comes  within  the  law  of  nations.  But 
the  power  of  Congress  to  enact  law3  for  the  pro- 
tection of  the  President  has  been  questioned.  Time 
will  not  permit  an  entry  into  this  field  of  discussion. 
The  question  has  never  been  passed  upon  by  the 
Supreme  Court.  It  may  be  claimed,  with  a  good 
deal  of  confidence,  that  the  limitation  of  this  power 
to  other  officers  of  the  government  when  engaged 
in  the  duties  of  their  office,  does  not  apply  to  the 
President  of  the  United  States  or  other  persons  in 
the  line  of  succession.  The  protection  of  the  Presi- 
dent is  a  distinct  question,  far  more  vital  and  funda- 
mental than  the  protection  of  other  government 
officers.  ^ 

The  Constitution  vests  the  executive  power  in  the 
President,  and  gives  Congress  the  power  to  make 
all  laws  necessary  for  carrying  into  execution  the 
powers  vested  by  the  Constitution  in  the  govern- 
ment. Every  government  has  the  inherent  power 
of  self-preservation.  The  Supreme  Court  has  often 
said  that  the  government  was  endowed  with  all  the 
powers  necessary  for  its  own  preservation.  To 
strike  down  the  President  is  to  strike  down  the 
executive  head  of  the  government,  —  the  person 
charged  at  all  times  with  the  execution  of  the  laws. 


74  ADDRESSES 

With  the  possible  exception  of  treason,  the  assassi- 
nation of  the  President  is  the  highest  known  crime 
against  the  United  States;  and  the  power  of  Con- 
gress to  pass  laws  for  the  punishment  of  crimes 
against  the  United  States  has  always  been  recog- 
nized and  exercised. 

In  addition  to  Senator  Hoar's  bill,  some  further 
protection  may  be  afforded  in  more  liberal  extra- 
dition treaties,  which  possibly  should  cover  an 
international  police  surveillance  of  the  class  of 
revolutionary  anarchists  who  instigate  and  advise 
assassination. 

The  opinion  expressed  by  some  that  the  present 
situation  justifies  the  passage  of  stringent  laws 
respecting  immigration  and  naturalization,  I  do  not 
entertain.  It  is  doubtful  if  such  laws  would  accom- 
plish the  purpose  designed,  and  reach  the  revolu- 
tionary anarchists.  Anarchy  can  be  finally  stamped 
out  only  through  the  influence  of  education. 
Although  most  of  the  anarchists  in  this  country 
are  aliens  or  of  alien  descent,  it  is  a  fact  worthy 
of  mention  that,  with  the  exception  of  the  hope- 
lessly insane  Lawrence,  no  alien  or  naturalized 
person  has  ever  raised  his  hand  against  the  Presi- 
dent of  the  United  States. 

The  whole  question  of  the  protection  of  the  life 
of  the  President  is  one  of  the  elimination  of  chances. 
This  investigation  has  led  me  to  conclude  that  the 


PROTECTION   OF   THE   PRESIDENT    75 

primary  thing  is  to  safeguard  the  President's  per- 
son, and  that  this  should  be  supplemented  by 
legislation   along   the   lines   considered. 

Among  the  reasons  for  my  thankfulness  for  this 
invitation  to  address  the  New  Hampshire  Bar 
Association,  is  the  opportunity  it  has  afforded  for 
some  examination  into  the  causes  of  the  strikingly 
anomalous  situation  of  this  country  concerning  the 
assassination  of  its  Chief  Magistrates.  I  cannot 
express  the  gratification  which  I  have  derived  in 
satisfying  my  own  mind  that  the  principal  cause 
is  carelessness  and  neglect,  and  does  not  lie  deeper 
in  the  character  of  our  people  or  government. 

No !  The  liberty  of  this  country  is  not  the  lib- 
erty of  assassination.  Our  dream  of  self-government 
has  not  proved  a  delusion.  The  struggles  and  sac- 
rifices of  mankind  have  not  been  in  vain.  The 
nation  still  remains  the  home  of  freedom,  law, 
and    justice. 

Each  of  these  terrible  tragedies  has  only  added 
strength  and  unity  to  the  Republic.  The  world 
has  never  witnessed  such  a  tribute  of  love  for  a 
ruler,  or  devotion  to  a  government,  as  when  the 
martyred  McKinley  was  laid  to  rest  amid  the  hush 
of  traffic  and  industry,  while  the  nation,  in  silent 
prayer,  stood  like  a  statue  upon  whose  brow  was 
beating   the   soft,   pure   light   of   liberty. 

This  country  presents  to-day  as  fair  a  picture   of 


76  ADDRESSES 

government  and  society  as  ever  met  the  eye  of  man; 
a  picture  full  of  human  comfort,  happiness,  and  well- 
being.  There  are  spots  on  the  surface  like  the 
spots  on  the  surface  of  the  sun,  and  there  always 
will  be  so  long  as  society  is  composed  of  imperfect 
humanity. 

We  have  erected  a  State  majestic  in  its  propor- 
tions, with  liberty  at  its  base,  —  the  most  powerful 
political  system  ever  know^n,  combining  the  free- 
dom of  the  individual  and  the  community  with  the 
strength  of  a  mighty  empire.  We  have  tried  to 
secure  the  prosperity  and  welfare  of  the  whole  people, 
including  all  races  and  nationalities  who  have  sought 
these  shores.  Political  equality  we  have  realized; 
but  equality  of  well-being  and  of  human  satisfaction 
w^e  have  not  attained.  The  great  and  irreversible 
laws  of  nature,  that  wealth  is  the  product  of  labor 
and  sacrifice,  and  that  men  are  born  with  unequal 
capacity  and  energy,  oppose  their  insuperable  bar- 
riers to  such  an  accomplishment.  But,  through 
divine  charity,  we  see  the  light  which  shall  dispel 
this  darkness.  Indeed,  the  consummation  seems 
near  at  hand,  as  we  behold  genius,  through  human 
sympathy,  bestowing  upon  mankind  the  fruits  of 
the  talents  derived  from  God. 


LAW  AND  REASONABLENESS 


LAW  AND  REASONABLENESS 

The  Annual  Address  before  the  American  Bar  Association  at  Hot 
Springs,  Virginia,  on  August  27,  1903. 

Mr.  President  and  Gentlemen 

OF  THE  American  Bar  Association: 

THE  first  and  most  pleasant  duty  which  falls 
upon  me  at  this  time  is  the  acknowledg- 
ment of  my  deep  appreciation  of  the  very 
high  honor  of  the  invitation  to  address  you  at  your 
annual  meeting. 

I  understand  it  is  a  law  of  this  Association,  estab- 
lished by  its  founders,  that  these  invitations  are  not 
under  any  circumstances  to  be  declined ;  and  that  it 
has  been  decreed  that  this  particular  law  is  a  com- 
mand proceeding  from  a  sovereign  power,  and  that 
ignorance  of  the  law  is  no  excuse.  At  the  same  time 
it  must  be  confessed  that  obedience  to  your  mandate 
is  not  an  easy  task.  Our  professional  duties  are 
laborious  and  exacting.  Judges,  as  well  as  lawyers, 
are  busy  men,  and  time  for  preparation  is  limited. 

Another  difficulty,  which  increases  from  year  to 
year,  is  the  choice  of  a  subject.  We  are  told  that 
Augustus  dealt  the  final  blow  to  the  Responsa  Pru- 
denium^   the   "answers  of   the   learned   in    the   law.'' 


78  ADDRESSES 

The  probable  cause  was  that  the  subjects  were  ex- 
hausted. I  need  hardly  remind  you  that  the  answers 
of  the  learned  in  the  law  during  the  quarter  of  a  cen- 
tury since  this  Association  began  its  invaluable  work, 
in  the  addresses  of  its  presidents,  the  annual  addresses, 
and  the  papers  read,  have  so  far  covered  the  whole 
field  of  jurisprudence  that  the  last  three  annual  re- 
sponses of  the  jurisconsults  were  devoted  to  the 
elucidation  of  a  single  important  topic  of  national 
concern.  It  is,  therefore,  with  much  hesitancy  that 
I  shall  invite  your  attention  to  some  observations  on 
Law  and  Reasonableness. 

The  essence  and  end  of  law  are  no  doubt  truthfully 
expressed  in  the  maxims: 

"  Law  is  the  perfection  of  reason." 

"  Reason  is  the  soul  of  the  law ;  and  when  the 
reason  of  any  particular  law  ceases,  so  does  the  law 
itself." 

"  The  reason  and  spirit  of  cases  make  law,  not  the 
letter  of  particular  precedents." 

"  Reason  is  the  life  of  the  law ;  the  common  law 
itself  is  nothing  else  but  reason." 

It  is  also  undoubtedly  true  that  the  great  body  of 
the  law  is  founded  upon  the  dictates  of  right  reason, 
natural  justice,  and  common  sense. 

But,  notwithstanding  all  this,  it  is  an  historical  fact 
that  the  growth  and  expansion  of  the  law  from  primi- 
tive custom  to  the  present  time  has  been  a  continuous 


LAW  AND  REASONABLENESS        79 

struggle  between  the  rigid  rules  of  positive  law  and 
the  standard  of  reasonableness  and  common  sense  of 
society  in  its  upward  march  to  a  higher  civilization  ; 
and  the  struggle  still  continues.  All  through  the 
centuries  of  the  law's  development  in  those  two 
great  systems  of  jurisprudence  which  have  been 
adopted  by  the  civilized  world,  the  English  law  and 
the  Civil  law,  there  has  been  a  constant  effort  to 
bring  existing  rules  into  harmony  with  advancing 
civilization. 

The  phenomenon  which  always  presents  itself  in 
progressive  societies  may  be  thus  described:  On  the 
one  hand,  there  is  a  body  of  legal  rules  which  by 
nature  are  stable  and  enduring;  on  the  other  hand, 
there  is  a  society  with  ever-changing  social  necessities 
and  opinions.  From  the  very  nature  of  these  con- 
ditions, which  are  permanent,  there  is  the  inevitable 
result  that  the  old  rules  of  law  cease  to  conform  to 
the  new  facts  of  life ;  that  they  are  not  adapted  to  the 
ever-varying  views  of  society;  and  that  consequently 
they  come,  in  part  at  least,  to  be  regarded  as  narrow, 
unreasonable,  and  out  of  touch  with  progress  and 
enlightened  public  sentiment. 

To  keep  the  rules  of  positive  law  as  nearly  as 
possible  abreast  of  social  wants  and  public  opinion, 
is  the  difficult  problem  which  always  has  and  always 
will  confront  progressive  nations.  That  gulf  can 
never   be  entirely  bridged.     A  stationary  body  and 


80  ADDRESSES 

a  moving  body  cannot  be  kept  together.  We  can 
only  by  unceasing  effort  narrow  the  chasm.  Some- 
times the  spirit  and  temper  of  society  are  far  in 
advance  of  legal  rules ;  at  other  times  they  nearly 
meet.  Upon  the  expedition  with  which  the  breach 
between  law  and  social  progress  is  lessened,  or 
upon  keeping  them  close  together,  depend,  in  large 
measure,  the  welfare  of  society  and  the  happiness 
of  the  people.  In  progressive  societies,  says  Maine, 
"it  may  be  laid  down  that  social  necessities  and 
social  opinions  are  always  more  or  less  in  advance 
of  law.  We  may  come  indefinitely  near  to  the  clos- 
ing of  the  gap  between  them,  but  it  has  a  perpetual 
tendency  to  reopen.  Law  is  stable;  the  societies  we 
are  speaking  of  are  progressive.  The  greater  or  less 
happiness  of  a  people  depends  on  the  degree  of 
promptitude  with  which  the  gulf  is  narrowed." 

Such  being  the  position  of  the  law  in  its  relation 
to  progressive  societies,  what  have  the  lawyers  done 
to  help  relieve  the  situation  ?  Where  have  they 
stood  in  this  long  struggle  between  an  unreasonable 
past  and  a  reasonable  present,  between  a  body  of 
rigid  legal  rules  and  an  advancing  civilization  ?  Are 
they  justly  open  to  the  charge  of  riveting  the  chains 
which  bind  the  community  to  customs  and  usages 
it  has  outgrown  by  their  devotion  to  technicalities, 
legal  forms,  and  precedents.'^  Have  they  stood  with 
Selden    when   he    exclaimed,   "  Equity   is   a   roguish 


LAW  AND  REASONABLENESS        81 

thing "  ?  Have  they  been  unmindful  of  the  fact 
that  they  are  largely  responsible  for  the  existing 
condition  of  the  law  at  every  stage  of  social  prog- 
ress, and  that  upon  them  devolves  the  duty,  in  great 
measure,  of  keeping  it  in  harmony  with  national 
growth?  Have  they  failed  to  realize  that  the  law 
is  made  for  society,  and  not  society  for  the  law ;  and 
that  it  should  be  adapted,  as  far  as  possible,  to  meet 
the  "  great,  complex,  ever-unfolding  exigencies "  of 
life  and  government? 

Let  us  first  see  how  some  of  the  great  lawyers 
have  answered  these  inquiries. 

It  was  Coke  who  said:  "The  principles  of  natural 
rights  are  perfect  and  immutable,  but  the  condition 
of  human  law  is  ever  changing,  and  there  is  nothing 
in  it  which  can  stand  forever.  Human  laws  are 
born,  live,  and  die." 

It  was  Hale  who  declared:   "We  must  remember 

that   laws  were   not  made  for  their  own  sakes,  but 

for  the   sake   of   those  who   were   to    be   guided   by 

them.  .  .  .  He   that   thinks   a   state   can  be  exactly 

steered   by  the  same  laws  in  every  kind  as  it  was 

two  or  three  hundred  years  ago  may  as  well  imagine 

that  the  clothes  that  fitted  him  when  a  child  should 

serve  him  when  he  was  grown  a  man.     The  matter 

changeth,  the  custom,  the  contracts,  the  commerce, 

the  dispositions,  educations,  and  tempers  of  men  and 

societies  change  in  a  long  tract  of  time,  and  so  must 

6 


82  ADDRESSES 

their  laws  in  some  measure  be  changed,  or  they  will 
not  be  useful  for  their  state  and  condition." 

It  was  Hardwicke  who  marked  out  and  systema- 
tized that  great  body  of  rational  and  remedial  rules 
we  call  equity,  which  has  done  so  much  to  keep  the 
law  in  touch  with  social  progress.  It  was  Mansfield 
who  declared  that  the  air  of  England  was  too  pure 
to  be  breathed  by  a  slave,  who  built  up  the  com- 
mercial law  to  meet  her  expanding  commerce  and 
industries,  and  of  whom  Burke  says :  "  His  ideas  go 
to  the  growing  amelioration  of  the  law  by  making 
its  liberality  keep  pace  with  the  demands  of  justice 
and  the  actual  concerns  of  the  world,  —  not  restrict- 
ing the  infinitely  diversified  occasions  of  men,  and 
the  rules  of  natural  justice,  within  artificial  circum- 
scriptions, but  conforming  our  jurisprudence  to  the 
growth  of  our  commerce  and  of  our  empire." 

It  was  Marshall  who  breathed  into  our  Constitu- 
tion the  breath  of  life,  and  who  declared :  "  This 
provision  is  made  in  a  Constitution  intended  to 
endure  for  ages  to  come,  and,  consequently,  to  be 
adapted  to  the  various  crises  of  human  affairs.  To 
have  prescribed  the  means  by  which  government 
should,  in  all  future  time,  execute  its  powers  would 
have  been  to  change  entirely  the  character  of  the 
instrument,  and  give  it  the  properties  of  a  legal 
code.  It  would  have  been  an  unwise  attempt  to 
provide,  by   immutable    rules,   for   exigencies  which. 


LAW  AND  REASONABLENESS        83 

if  foreseen  at  all,  must  have  been  seen  dimly,  and 
which  can  be  best  provided  for  as  they  occur.  To 
have  declared  that  the  best  means  shall  not  be  used, 
but  those  alone  without  which  the  power  given  would 
be  nugatory,  would  have  been  to  deprive  the  legisla- 
ture of  the  capacity  to  avail  itself  of  experience,  to 
exercise  its  reason,  and  to  accommodate  its  legislation 
to  circumstances." 

It  was  Story  who  said :  "  Government  presupposes 
the  existence  of  a  perpetual  mutability  in  its  own 
operations  on  those  who  are  its  subjects,  and  a  per- 
petual flexibility  in  adapting  itself  to  their  wants, 
their  interests,  their  habits,  their  occupations,  and 
their  infirmities." 

It  was  Shaw  who  declared :  "  It  is  the  great  merit 
of  the  common  law  that  it  is  founded  upon  a  com- 
paratively few  broad,  general  principles  of  justice, 
fitness,  and  expediency,  .  .  .  generally  comprehen- 
sive enough  to  adapt  themselves  to  new  institutions 
and  conditions  of  society,  new  modes  of  commerce, 
new  usages  and  practices,  as  the  progress  of  society 
in  the  advancement  of  civilization  may  require." 

Such  has  been  the  position  of  the  lawyers  in  the 
struggle  between  legal  rules  and  social  progress ;  and 
this  position  is  corroborated  by  the  history  of  the 
law's  development  from  early  times. 

The  history  of  the  growth  and  expansion  of  the 
Roman   and    English    systems   of  jurisprudence  dis- 


84  ADDRESSES 

closes  the  important  part  taken  by  the  lawyers  in 
making  the  law  more  reasonable  as  society  required. 
The  doctrines  and  instrumentalities  which  have  en- 
abled it  to  keep  nearly  abreast  of  the  moral  and 
intellectual  growth  of  the  people  have  been  largely 
their  work. 

When  Rome  extended  her  boundaries  over  Italy, 
and  the  rules  of  the  civil  law,  embodied  in  the  Twelve 
Tables,  became  narrow  and  unreasonable  in  their 
application  to  foreigners,  it  was  the  Roman  juriscon- 
sults who  conceived  and  carried  into  effect  a  code 
of  rules  which  overrode  the  harsh  civil  code.  They 
based  this  new  code  upon  the  assumption  that  there 
were  certain  ingredients  in  the  law  which  were  com- 
mon to  Rome  and  other  Italian  communities.  To 
justify  this  assumption,  they  appealed  to  tradition  and 
observation.  "  The  expedient  to  which  they  resorted," 
says  Maine,  "was  that  of  selecting  the  rules  of  law 
common  to  Rome  and  to  the  different  Italian  com- 
munities in  which  the  immigrants  were  born.  .  .  . 
The  Jus  Gentium  was  accordingly  a  collection  of 
rules  and  principles,  determined  by  observation  to  be 
common  to  the  institutions  which  prevailed  among 
the  various  Italian  tribes." 

When  this  doctrine  became  inadequate  as  an  instru- 
ment for  expanding  the  rules  of  the  civil  law  for  the 
purpose  of  meeting  the  wants  and  aspirations  of  the 
Roman  people  as  they  advanced  to  the  conquest  of 


LAW   AND   REASONABLENESS        85 

the  world,  the  Roman  lawyers  borrowed  a  theory 
from  Greek  philosophy  for  the  purpose  of  expanding 
ihe  Jus  gentium,  called  the  Law  of  Nature  —  a  theory 
which  soon  became  the  basic  principle  underlying 
that  vast  superstructure  known  as  Roman  law;  a 
theory  which  has  exerted  a  profound  influence  upon 
English  law,  and  upon  whose  foundation  rest  the 
Law  Merchant  and  modern  International  Law.  To 
this  same  theory  may  also  be  traced  the  principle  that 
all  men  are  born  equal,  and  are  entitled  to  equal 
protection  of  the  laws,  which  is  found  in  the  Decla- 
ration of  Independence  and  in  the  Constitution  of 
the  United  States. 

In  giving  expression  to  this  theory,  the  Roman 
jurisconsults  said:  "All  nations,  who  are  ruled  by 
laws  and  customs,  are  governed  partly  by  their  own 
particular  laws,  and  partly  by  those  laws  which  are 
common  to  all  mankind.  The  law  which  a  people 
enacts  is  called  the  Civil  Law  of  that  people,  but 
that  which  natural  reason  appoints  for  all  mankind  is 
called  the  law  of  nations  because  all  nations  use  it." 

The  doctrine  of  the  Law  of  Nature  —  first  prac- 
tically utilized  in  the  administration  of  justice  by 
Roman  jurists  —  whose  primordial  elements  are  uni- 
formity, simplicity,  harmony,  and  equality,  and  whose 
broadening  influence  upon  the  jurisprudence  of  the 
world  has  been  so  potent  and  permanent,  is  the  doc- 
trine of   intrinsic  reasonableness.     It  is  the  doctrine 


86  ADDRESSES 

prescribed  by  absolute,  evident,  and  universal  reason 
as  manifested  in  the  consent  of  reasonable  men.  It 
consists  of  a  body  of  precepts  which  satisfy,  and  are 
in  accord  with,  right  human  reason,  and  which  are 
binding  on  all  mankind  by  virtue  of  their  inherent 
reasonableness.  To  the  classical  Roman  lawyers,  in 
the  words  of  Sir  Frederick  Pollock,  "  It  would  be 
convenient  to  take  ius  naturale  for  the  sum  of  rules 
of  conduct  which  ought  to  be  received  because  they 
are  reasonable  in  themselves,  and  ius  gentium  for 
those  which  are  received  in  fact  by  the  general  con- 
sent of  civilized  mankind."  To  the  publicists  of  the 
Middle  Ages,  he  says,  "  the  Law  of  Nature  presented 
itself  as  a  rule  of  human  conduct  independent  of 
positive  enactment  and  even  of  divine  revelation,  and 
binding  always  and  everywhere  in  virtue  of  its  in- 
trinsic reasonableness."  The  same  high  authority 
declares  that  the  Law  Merchant  "  claimed  the  respect 
and  aid  of  local  magistrates  as  a  branch  of  the  Law 
of  Nature,  considered  as  a  body  of  legal  rules  demon- 
strable by  natural  human  reason,  and  therefore  en- 
titled to  universal  obedience."  And  further,  that 
Gentili  the  pioneer,  and  Grotius  the  founder,  of  Inter- 
national Law,  laid  its  foundation  on  the  broad  and 
universal  principles  of  the  Law  of  Nature. 

While  English  jurisprudence  has  not  adopted  the 
Law  of  Nature,  in  the  sense  of  the  civil  law,  as  the 
fundamental   doctrine   underlying  the  whole   system, 


LAW  AND  REASONABLENESS        87 

our  courts  have  appealed  to  its  principles,  and  have 
been  governed  by  its  precepts. 

They  have  said  that  positive  laws  are  invalid  which 
contradict  the  Law  of  Nature,  that  it  is  binding  in 
all  countries  and  at  all  times,  and  that  no  human 
laws  are  of  any  validity  if  contrary  to  this.  They 
have  invoked  this  doctrine  in  their  assertion  that  acts 
of  Parliament  w^hich  were  contrary  to  universal  rea- 
son and  natural  justice  were  void;  that  the  funda- 
mental principles  of  right  and  justice  inherent  in  the 
nature  and  spirit  of  the  social  compact  restrain  and 
set  bounds  to  the  power  of  legislation;  and  that  the 
legislature  cannot  take  away  that  security  for  personal 
liberty  and  private  property  for  whose  protection  the 
government  was  established.  Chancellor  Kent  ap- 
pealed to  this  doctrine  when  he  asserted  that  "  a 
statute  is  never  to  be  construed  against  the  plain  and 
obvious  dictates  of  reason";  and  Mr.  Justice  Miller, 
when  he  declared :  "  It  must  be  conceded  that  there 
are  such  rights  in  every  free  government  beyond  the 
control  of  the  State.  A  government  which  recog- 
nized no  such  rights,  which  held  the  lives,  the  liberty, 
and  the  property  of  its  citizens  subject  at  all  times  to 
the  absolute  disposition  and  unlimited  control  of  even 
the  most  democratic  depository  of  power,  is  after  all 
a  despotism  ";  and  Mr.  Justice  Brown,  when  he  said: 
"  It  is  sufficient  to  say  that  there  are  certain  immu- 
table  principles   of  justice  which  inhere  in  the  very 


88  ADDRESSES 

idea  of  free  government  which  no  member  of  the 
Union  may  disregard."  If  the  judges,  in  their  appeals 
to  the  Law  of  Nature,  have  not  succeeded  in  over- 
throwing the  principle  of  the  omnipotence  of  legis- 
lative power  where  it  is  exercised  in  violation  of 
natural  reason  and  common  sense,  we  cannot  but 
admire  the  lofty  sense  of  justice  by  which  they  were 
actuated  in  their  protest  against  its  full  and  complete 
acceptance  under  all  circumstances. 

But  the  courts  have  gone  further.  They  have 
said  that  the  Law  of  Nature  is  a  part  of  the  law  of 
England.  They  have  struggled  more  and  more,  as 
society  has  advanced  in  civilization,  to  make  the  law 
conform  to  its  teachings;  to  make  it  "the  sum  of 
rules  of  conduct  which  ought  to  be  received  because 
they  are  reasonable  in  themselves  " ;  to  bring  it  into 
harmony  with  natural  reason  as  manifested  in  the 
consent  of  reasonable  men.  They  have  incorporated 
this  doctrine  of  reasonableness  into  all  branches  of 
the  law.  It  lies  imbedded  in  the  rights  of  person, 
in  the  rights  of  property,  and  in  the  rules  of  pro- 
cedure. It  permeates  the  law  of  contracts  and  negli- 
gence. The  exercise  of  the  police  power  turns  upon 
it.  It  limits  and  qualifies  the  enjoyment  of  individual 
rights.  It  is  a  kind  of  universal  postulate  underlying 
all  rules  of  civil  conduct. 

The  courts  have  also  called  in  aid  this  doctrine 
of    reasonableness    to   justify    a  departure    from   the 


LAW  AND   REASONABLENESS        89 

strict  rules  of  law.  They  have  built  up  equity  upon 
it,  and  relied  on  its  precepts  for  decision  in  doubt- 
ful cases.  They  have  founded  the  rules  of  constitu- 
tional interpretation  upon  it.  The  principles  of  the 
common  law  which  are  so  frequently  invoked  by 
the  judges  may  be  said  to  rest  on  this  doctrine, — 
those  principles  which  Chief  Justice  Shaw  calls  "the 
broad,  general  principles  of  justice,  fitness,  and  expe- 
diency." Mansfield  appealed  to  the  same  doctrine 
when  he  declared: 

"  The  law  of  England  would  be  a  strange  science 
indeed  if  it  were  decided  upon  precedents  only. 
Precedents  serve  to  illustrate  principles  and  to  give 
them  a  fixed  certainty.  But  the  law  of  England  is 
exclusive  of  positive  law,  enacted  by  statute,  depends 
upon  principles,  and  these  principles  run  through  all 
the  cases  according  as  the  particular  circumstances 
of  each  have  been  found  to  fall  within  the  one  or 
other  of  them." 

The  same  doctrine  was  invoked  by  Mr.  Justice 
Brewer  when  he  said: 

"  But  passing  beyond  the  matter  of  authorities,  the 
question  is  essentially  one  of  general  law.  It  does  not 
depend  upon  any  statute  ;  it  does  not  spring  from  any 
local  usage  or  custom;  there  is  in  it  no  rule  of  property, 
but  it  rests  upon  those  considerations  of  right  and  jus- 
tice which  have  been  gathered  into  the  great  body  of  the 
rules  and  principles  known  as  the  'common  law.'" 


90  ADDRESSES 

But  the  lawyers  have  done  much  more  than  incor- 
porate into  the  law  the  theories  and  doctrines  by 
which  its  rules  have  been  made  more  rational  in 
response  to  social  changes  and  advancing  civilization. 
They  have  devised  those  great  remedial  agencies, 
Fictions  and  Equity,  by  which  the  work  has  been 
largely  carried  on.  It  is  almost  wholly  through  these 
instrumentalities  that  for  centuries  the  rules  of  law 
were  enabled  to  meet  the  growing  wants  of  society ; 
for  it  is  not  until  a  comparatively  recent  period  in 
the  history  of  jurisprudence  that  legislation  has  been 
relied  upon  to  any  large  extent  as  a  remedial  agency. 
And  in  respect  to  legislation,  it  will  be  found  that 
the  judiciary,  through  its  power  of  construction  and 
interpretation,  has  acted  as  a  safeguard  against  the 
enforcement  of  unreasonable  statute  laws. 

It  was  the  Roman  jurisconsults  who  resorted  to 
fictions  for  overcoming  the  severity  of  legal  rules, 
and  reconciling  the  letter  of  the  law  with  common 
sense  and  justice.  When  large  numbers  of  foreign- 
ers flocked  to  Rome,  the  strict  rule  of  the  civil  code 
that  no  one  but  a  Roman  citizen  could  maintain 
suit  became  harsh  and  unjust;  whereupon  the  Roman 
lawyers  invented  the  fiction  that  if  a  foreigner  averred 
he  was  a  Roman  citizen,  the  defendant  could  not 
traverse  the  allegation.  From  analogy  to  this  Roman 
fiction,  the  Supreme  Court  of  the  United  States, 
more  than   two  thousand   years   afterwards,   adopted 


LAW  AND  REASONABLENESS        91 

the  fiction  that  all  the  members  of  a  corporation  are 
presumed  to  be  citizens  of  the  State  which  created 
it,  and  that  no  one  shall  traverse  this  presumption. 

Although  legal  fictions  have  been  called  rude 
absurdities,  they  were,  especially  in  the  early  stages 
of  jurisprudence,  highly  useful  and  beneficial  instru- 
ments for  expanding  the  stern  rules  of  law  as  society 
demanded.  "  At  a  particular  stage  of  social  progress," 
says  Maine,  "  they  are  invaluable  expedients  for  over- 
coming the  rigidity  of  law,  and,  indeed,  without  one 
of  them,  the  Fiction  of  Adoption,  which  permits  the 
family  tie  to  be  artificially  created,  it  is  difficult  to 
understand  how  society  would  ever  have  escaped 
from  its  swaddling  clothes,  and  taken  its  first  steps 
towards  civilization." 

"  The  supposition,"  declares  Dicey,  "  that  the  cun- 
ning of  lawyers  has  by  the  invention  of  legal  fictions 
corrupted  the  fair  simplicity  of  our  original  consti- 
tution, underrates  the  statesmanship  of  lawyers  as 
much  as  it  overrates  the  merits  of  early  society. 
The  fictions  of  the  courts  have  in  the  hands  of  law- 
yers such  as  Coke  served  the  cause  both  of  justice 
and  of  freedom,  and  served  it  when  it  could  have 
been  defended  by  no  other  weapons.  For  there  are 
social  conditions  under  which  legal  fictions  or  sub- 
tleties afford  the  sole  means  of  establishing  that  rule 
of  equal  and  settled  law  which  is  the  true  basis  of 
English  civilization." 


92  ADDRESSES 

It  is  also  true  that  the  English  judges  and  Roman 
jurists  have  really  employed  fictions  in  a  much  broader 
sense,  for  the  purpose  of  changing,  extending,  and 
modifying  the  rules  of  law  in  order  to  bring  them 
into  harmony  with  social  progress  and  the  actual 
concerns  of  life.  Upon  the  supposition  that  there 
actually  existed  in  the  body  of  the  law  a  rule  which 
would  cover  the  facts  of  every  case,  they  proceeded, 
as  cases  arose,  to  engraft  upon  the  old  law  a  new 
code.  In  theory,  the  law  remained  the  same ;  in  fact, 
it  had  been  changed. 

A  marked  illustration  of  this  process  is  found  in 
the  decisions  of  Lord  Mansfield,  who  added  to  the 
English  law  a  body  of  rules,  unknown  to  the  common 
law,  relating  to  bills  of  exchange,  promissory  notes, 
marine  insurance,  and  other  kindred  subjects,  to  the 
end  of  "conforming  our  jurisprudence  to  the  growth 
of  our  commerce  and  of  our  empire." 

There  is  an  interesting  description  of  how  the  law 
springs  into  existence  through  judicial  decision  in  a 
case  where  there  is  no  record  of  a  preceding  similar 
case,  in  Mr.  Carter's  notable  address  before  this  Asso- 
ciation on  "  The  Ideal  and  the  Actual  in  the  Law  " : 

"  In  all  this  the  things  which  are  plain  and  palpable 
are,  (i)  that  the  whole  process  consists  in  a  search  to 
find  out  a  rule ;  (2)  that  the  rule  thus  sought  for  is  the 
just  rule,  —  that  is  to  say,  the  rule  most  in  accordance 
with  the  sense  of  justice  of   those  engaged   in   the 


LAW   AND   REASONABLENESS        93 

search ;  (3)  that  it  is  tacitly  assumed  that  the  sense  of 
justice  is  the  same  in  all  those  who  are  thus  engaged, 
—  that  is  to  say,  that  they  have  a  common  standard  of 
justice  from  which  they  can  argue  with,  and  endeavor 
to  persuade  each  other ;  (4)  that  the  field  of  search  is 
the  habits,  customs,  business,  and  manners  of  the 
people,  and  those  previously  declared  rules  which  have 
sprung  out  of  previous  similar  inquiries  into  habits* 
customs,  business,  and  manners."  By  this  method  "  a 
rule  is  deduced  which  is  declared  to  be  the  one  which 
the  existing  law  requires  to  be  applied  to  the  case." 

This  process  of  case  law  legislation  has  been  em- 
ployed since  the  birth  of  jurisprudence.  It  is  still  in 
active  operation,  and  will  so  continue  while  the  great 
body  of  our  law  is  unwritten  or  common  law  and  but 
a  small  fraction  statute  law. 

When  legal  fictions,  in  the  progress  of  society,  be- 
came unequal  to  the  task  of  overcoming  the  rigidity 
of  the  rules  of  positive  law,  there  grew  up  alongside 
of  that  system  a  body  of  principles  known  as  equity. 
This  was  the  work  of  the  Roman  praetors  and  the 
English  chancellors.  As  the  old  rules  became  harsh 
and  unreasonable  and  out  of  harmony  with  civiliza- 
tion, they  gradually  adopted  this  new  and  more  per- 
fect system  to  meet  social  necessities  and  public 
sentiment ;  a  system  which  was  "  to  stand  side  by  side 
with  the  law  of  the  land,  overriding  it  in  case  of  con- 
flict, as  on  some  title  of  inherent  superiority,  but  not 


94  ADDRESSES 

purporting  to  repeal  it."  They  held  that  the  proceed- 
ings in  equity  were  not  like  the  inelastic  rules  of  law 
established  from  time  immemorial,  but  were  adapted 
to  the  existing  state  of  society. 

"  I  wonder,"  said  Chief  Justice  Vaughan,  who  was 
called  to  sit  with  the  Chancellor  in  Fry  v.  Pointer,  "  to 
hear  of  citing  of  precedents  in  matter  of  equity,  for 
if  there  be  equity  in  a  case,  that  equity  is  an  univer- 
sal truth,  and  there  can  be  no  precedent  in  it ;  so  that 
in  any  precedent  that  can  be  produced,  if  it  be  the 
same  with  this  case,  the  reason  and  equity  is  the  same 
in  itself;  and  if  the  precedent  be  not  the  same  case 
with  this,  it  is  not  to  be  cited." 

To  which  the  Lord  Keeper  Bridgman  replied : 
"  Certainly  Precedents  are  very  necessary  and  useful 
to  us,  for  in  them  we  may  find  the  reasons  of  the 
equity  to  guide  us;  and  besides,  the  authority  of 
those  who  made  them  is  much  to  be  regarded.  We 
shall  suppose  they  did  it  upon  great  consideration  and 
weighing  of  the  matter,  and  it  would  be  very  strange 
and  very  ill  if  we  should  disturb  and  set  aside  what 
has  been  the  course  for  a  long  series  of  time  and 
ages." 

Although  precedents  have  had  their  influence  upon 
English  courts  of  equity  from  the  beginning,  they 
were  not  considered  of  binding  authority.  We  may 
here  refer  to  the  words  of  Lord  Hardwicke :  "  When 
the  court  finds  the  rules  of  law  ris^ht,  it  will  follow 


LAW  AND  REASONABLENESS        95 

them,  but  then  it  will  likewise  go  beyond  them  " ;  and 
of  Lord  Cottenham  :  "  I  think  it  is  the  duty  of  this 
court  to  adapt  its  practice  and  course  of  proceeding  to 
the  existing  state  of  society,  and  not,  by  too  strict  an 
adherence,  to  decline  to  administer  justice,  and  to  en- 
force rights  for  which  there  is  no  other  remedy.  This 
has  always  been  the  principle  of  this  court,  though 
not  at  all  times  sufficiently  attended  to." 

"It  must  not  be  forgotten,"  said  Jessel,  "that  the 
rules  of  courts  of  equity  are  not  like  the  rules  of  the 
Common  Law,  supposed  to  be  established  from  time 
immemorial.  It  is  perfectly  well  known  that  they 
have  been  established  from  time  to  time,  —  altered, 
improved,  and  refined  from  time  to  time." 

It  is  true  that,  both  in  Rome  and  England,  equity 
ceased  in  time  to  be  expansive.  It  was,  however,  one 
of  the  principal  instrumentalities  created  by  Roman 
and  English  judges,  by  which  for  many  generations 
the  law  was  expanded  with  social  growth. 

We  have  now  reached  the  third,  and,  in  modern 
times,  by  far  the  most  important  remedial  agency  for 
the  amelioration  of  the  law,  namely,  legislation.  This 
instrumentality  rests  upon  the  doctrine  of  legislative 
omnipotence.  In  Great  Britain  Parliament  has  abso- 
lute power.  In  the  United  States  the  same  uncon- 
trollable power  has  been  vested  by  the  people  in  the 
legislature,  subject  to  the  limitations  imposed  by  the 
Federal  and  State  constitutions.     From  the  nature  of 


96  ADDRESSES 

this  power  it  is  obvious  that  in  this  field  of  reform 
judicial  action  is  limited.  Let  us  examine  briefly  the 
position  of  the  courts  with  respect  to  this  all-potent 
remedial  agency. 

Before  the  division  between  the  legislative  and  judi- 
cial powers  of  the  government  had  become  so  sharply 
defined,  the  courts,  as  we  have  already  pointed  out,  vig- 
orously protested  against  the  authority  of  the  legisla- 
ture to  enact  a  valid  law  which  was  in  violation  of 
natural  justice  and  common  sense.  Such  expressions 
are  found  in  judicial  decisions  from  Lord  Coke  in 
Bonham's  case,  who  declared  that  "  when  an  act  of 
Parliament  is  against  right  and  reason,  or  repugnant, 
or  impossible  to  be  performed,  the  common  law  will 
control  it,  and  adjudge  such  act  to  be  void,"  down 
to  Mr.  Justice  Miller  in  Loan  Association  v.  Topeka, 
and  Mr.  Justice  Brown  in  Holden  v.  Hardy, 

Again,  in  their  desire  to  make  statute  law  reasonable 
and  accord  with  public  opinion,  the  courts  in  early 
times  resorted  to  the  doctrine  of  equitable  construc- 
tion. Upon  this  principle  they  disregarded  the  letter 
of  the  statute,  and  extended  its  provisions  to  cases 
"  within  the  same  mischief,"  or  they  excepted  from  the 
statute,  though  covered  by  its  terms,  other  cases  on 
considerations  of  justice  and  right  reason. 

"  From  this  judgment  and  the  cause  of  it,"  says  Plow- 
den  in  a  note  to  Eyston  v.  Studd,  "the  reader  may 
observe  that  it  is  not  the  words  of  the  law,  but  the 


LAW  AND  REASONABLENESS        97 

internal  sense  of  it  that  makes  the  law,  and  our  law,  like 
all  others,  consists  of  two  parts,  viz.,  of  body  and  soul ; 
the  letter  of  the  law  is  the  body  of  the  law,  and  the 
sense  and  reason  of  the  law  are  the  soul  of  the  law. 
.  .  .  And  it  often  happens  that  when  you  know  the 
letter  you  know  not  the  sense ;  for  sometimes  the 
sense  is  more  confined  and  contracted  than  the  letter, 
and  sometimes  it  is  more  large  and  extensive.  And 
equity  enlarges  or  diminishes  the  letter  according  to 
its  discretion." 

Although  the  doctrine  of  equitable  construction  has 
been  disowned  as  encroaching  upon  the  exercise  of 
legislative  power,  the  courts  still  call  to  their  aid,  in 
their  efforts  to  make  statute  law  conform  to  the  dic- 
tates of  common  sense,  essentially  the  same  principle 
in  another  form.  They  now  declare  that  a  statute 
should  be  construed  with  reference  to  its  spirit  and 
reason.  This  principle  is  laid  down  by  the  Supreme 
Court  in  Trinity  Church  v.  United  States.  The  ques- 
tion in  issue  was  the  applicability  of  the  Alien  Contract 
Labor  Law  to  a  clergyman  who  came  to  this  country 
under  a  contract  to  enter  the  service  of  a  church.  It 
was  conceded  that  the  case  came  within  the  letter 
of  the  law. 

"  It  is  a  familiar  rule,"  said  the  court,  "  that  a  thing 
may  be  within  the  letter  of  the  statute  and  yet  not 
within  the  statute,  because  not  within  its  spirit  nor 
within  the  intention  of  its  makers.     This   has  been 


98  ADDRESSES 

often  asserted,  and  the  reports  are  full  of  cases  illus- 
trating its  application." 

In  support  of  its  conclusion,  the  court  cites  from 
its  opinion  in  United  States  v.  Kirby : 

"All  laws  should  receive  a  sensible  construction. 
.  .  .  The  reason  of  the  law  in  such  cases  should  pre- 
vail over  its  letter.  The  common  sense  of  man  ap- 
proves the  judgment  mentioned  by  Puffendorf,  that 
the  Bolognian  law  which  enacted  '  that  whoever  drew 
blood  in  the  streets  should  be  punished  with  the  ut- 
most severity,'  did  not  extend  to  the  surgeon  who 
opened  the  vein  of  a  person  that  fell  down  in  the 
street  in  a  fit.  The  same  common  sense  accepts  the 
ruling,  cited  by  Plowden,  that  the  statute  of  ist  Ed- 
ward II.,  which  enacts  that  a  prisoner  who  breaks 
prison  shall  be  guilty  of  felony,  does  not  extend  to  a 
prisoner  who  breaks  out  when  the  prison  is  on  fire, 
*  for  he  is  not  to  be  hanged  because  he  would  not  stay 
to  be  burned.' " 

The  courts  have  also  employed  presumptions  exten- 
sively to  make  statute  law  reasonable.  There  is  the 
presumption  against  injustice ;  the  presumption  against 
an  absurdity  or  absurd  consequences;  the  presump- 
tion against  inconvenience  or  hardship ;  the  presump- 
tion against  an  impossibility;  the  presumption  as  to 
public  policy,  which  means  that  the  legislature  does 
not  intend  to  violate  public  morality  or  the  principles 
of  sound  public  policy.    These  and  other  presumptions 


LAW  AND   REASONABLENESS        99 

are  resorted  to  where  statutes  are  in  any  way  doubtful 
or  ambiguous,  and  so  open  to  more  than  one  con- 
struction, in  order  that  they  may  conform  to  reason 
and  common  sense. 

The  invocation  of  the  doctrine  of  reasonableness 
by  the  courts  in  aid  of  progress  and  the  protection 
of  society,  is  strikingly  illustrated  in  the  conflict  be- 
tween legislative  omnipotence  and  the  constitutional 
guaranties  of  personal  liberty  and  equality  secured 
by  the  Fourteenth  Amendment  to  the  Constitution 
of  the  United  States. 

When  the  Constitution  was  ratified  in  1789,  the 
people  were  fearful  of  centralization  and  consolidation, 
and  hence  the  bill  of  rights  embodied  in  the  first  ten 
amendments  was  speedily  adopted.  These  amend- 
ments only  restrain  the  national  government,  and 
have  no  application  to  the  States.  After  the  close  of 
the  Civil  War  in  1865,  public  opinion  had  changed, 
and  in  1868  the  Fourteenth  Amendment  became  a 
part  of  the  supreme  law  of  the  land.  By  its  provis- 
ions the  States  are  prohibited  from  passing  or  enforc- 
ing any  law  which  shall  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  or 
deny  to  any  person  the  equal  protection  of  the  laws. 

We  have,  on  the  one  hand,  the  State  legislature 
clothed  with  the  police  power,  the  taxing  power,  the 
power  of  eminent  domain,  and  other  general  powers ; 
and  on  the  other  hand,  this  constitutional  guaranty  of 


100  ADDRESSES 

individual  liberty  and  equality.  In  dealing  with  this 
situation  the  Supreme  Court  has  declared  that  there 
is  a  boundary  line  beyond  which  the  legislature  will 
not  be  permitted  to  pass;  and  this  line  is  established 
by  the  application  of  the  doctrine  of  reasonableness. 
It  is  held  that  the  exercise  by  the  legislature  of  its 
great  powers  in  an  unreasonable  way  is  not  due  pro- 
cess of  law,  or  equal  protection  of  the  laws,  within  the 
meaning  of  the  Fourteenth  Amendment.  In  reaching 
this  position,  it  became  necessary  for  the  court  to  lay 
down  a  principle  which  is  far-reaching,  and  fraught 
with  momentous  consequences,  namely,  that  the  ques- 
tion of  what  is  reasonable  is  a  judicial  and  not  a  legis- 
lative question.  As  this  question  was  first  left  by  the 
court  in  Munn  v.  State  of  Illinois,  it  might  have  been 
Supposed  that  it  was  for  the  legislature  to  determine 
what  is  reasonable.  In  the  subsequent  case,  however, 
of  Chicago  Railway  Company  v.  Minnesota,  it  was  de- 
cided that  the  legislature  could  not  authorize  the  im- 
position of  unreasonably  low  rates,  since  such  action 
would  deprive  railroads  of  their  property  without 
due  process  of  law.  And  in  later  cases  it  has  been 
authoritatively  adjudicated  that  the  question  of  what 
is  reasonable  is  for  the  court  and  not  for  the  legisla- 
ture. In  Covington  Turnpike  Company  v.  San/ord, 
the  court  declared : 

"  There  is  a  remedy  in  the  courts  for  relief  against 
legislation  establishing  a  tariff  of  rates  which  is  so 


LAW  AND   REASONABLENESS      101 

unreasonable  as  to  practically  destt-cy-the  Valud  :bf 
the  property  of  companies  engaged  in  thie^  carrying 
business,  and  that  especially  mfty-' the  courts  <pf  ;tfte; 
United  States  treat  such  a  question  as  a  judicial 
one,  and  hold  such  acts  of  legislation  to  be  in  con- 
flict with  the  Constitution  of  the  United  States,  as 
depriving  the  companies  of  their  property  without 
due  process  of  law,  and  as  depriving  them  of  equal 
protection  of  the  laws." 

The  paramount  inquiry  by  the  Supreme  Court  in 
all  cases  involving  the  exercise  of  the  police  power 
is  whether  the  action  of  the  legislature  is  reasonable 
under  the  circumstances,  or  an  arbitrary  and  unreason- 
able interference  with  individual  liberty.  An  admira- 
ble summary  of  the  court's  views  on  this  important 
subject  is  found  in  Lawton  v.  Steele: 

"  To  justify  the  State  in  thus  interposing  its  author- 
ity in  behalf  of  the  public,  it  must  appear,  first,  that 
the  interests  of  the  public  generally,  as  distinguished 
from  those  of  a  particular  class,  require  such  interfer- 
ence ;  and,  second,  that  the  means  are  reasonably  nec- 
essary for  the  accomplishment  of  the  purpose,  and  not 
unduly  oppressive  upon  individuals.  The  legislature 
may  not,  under  the  guise  of  protecting  the  public 
interests,  arbitrarily  interfere  with  private  business, 
or  impose  unusual  and  unnecessary  restrictions  upon 
lawful  occupations.  In  other  words,  its  determination 
as  to  what  is  a  proper  exercise  of  its  police  powers  is 


102  ADDRESSES 

hot  fi:nal  dr^c^ond  but  is  subject  to  the  supervision 

pf  the. cpurisL."      .   ,.. 

:  •  <Vt;tbe  close,  ot  the  opinion  in  Holden  v.  Hardy, 
after  an  elaborate  review  of  the  cases  and  underlying 
principles,  the  court  said : 

"  The  question  in  each  case  is  whether  the  legisla- 
ture has  adopted  the  statute  in  exercise  of  a  reason- 
able discretion,  or  whether  its  action  be  a  mere  excuse 
for  an  unjust  discrimination,  or  the  oppression  or  spo- 
liation of  a  particular  class." 

So,  likewise,  classification  by  the  legislature  of  cor- 
porations or  trades  for  the  purposes  of  taxation  or 
regulation  must  be  reasonable.  As  the  court  de- 
clared in  Railway  Company  v.  Ellis,  upon  full  con- 
sideration of  this  subject : 

Classification  "must  alwajrs  rest  upon  some  differ- 
ence which  bears  a  reasonable  and  just  relation  to  the 
act  in  respect  to  which  the  classification  is  proposed, 
and  can  never  be  made  arbitrarily  and  without  any 
such  basis.  ...  It  is  apparent  that  the  mere  fact 
of  classification  is  not  sufficient  to  relieve  a  statute 
from  the  reach  of  the  equality  clause  of  the  Four- 
teenth Amendment,  and  that  in  all  cases  it  must 
appear  not  only  that  a  classification  has  been  made, 
but  also  that  it  is  one  based  upon  some  reasonable 
ground  —  some  difference  which  bears  a  just  and 
proper  relation  to  the  attempted  classification  —  and 
is  not  a  mere  arbitrary  selection." 


LAW   AND  REASONABLENESS      103 

The  standard  of  reasonableness  is  also  applied  to 
legislative  acts  establishing  rules  of  procedure.  To 
constitute  due  process  of  law  such  rules  must  "  be 
reasonably  suitable  to  the  nature  of  the  case."  For 
example,  in  Wheeler  v.  Jackson  it  was  held  that  a 
statute  of  limitations  must  not  unreasonably  limit 
the  opportunity  to  enforce  a  right  by  suit. 

Our  highest  form  of  statute  law  is  the  Federal 
Constitution.  The  Roman  jurists  tell  us  that  each 
nation  is  governed  partly  by  its  own  particular  laws 
and  partly  by  laws  ordained  by  natural  reason,  which 
are  common  to  all  nations.  So  with  us,  each  State  is 
governed  partly  by  its  own  particular  laws,  and  partly 
by  the  paramount  law  of  the  Constitution  which  is 
common  to  all  the  States.  And  with  respect  to  this 
paramount  law  the  Supreme  Court  has  pursued  a 
method  of  interpretation  which  conforms  to  natural 
reason.  Recognizing  that  the  supreme  law  of  this 
great  cluster  of  States  must  harmonize  with  national 
growth,  its  canons  of  construction  may  be  said  to 
rest  upon  the  precepts  of  the  Law  of  Nature,  upon 
the  doctrine  of  intrinsic  reasonableness.  They  are, 
in  substance,  a  body  of  rules  demonstrable  by  nat- 
ural human  reason.  A  constitution,  it  is  held,  is  a 
frame  of  government  intended  to  endure  for  ages. 
It  is  not  a  rigid  code,  but  a  declaration  of  general 
principles.  It  is  not  governed  by  the  rules  of  posi- 
tive law,  nor  by  those  which  apply  to  ordinary  statutes, 


104  ADDRESSES 

charters,  and  private  writings.  It  is  to  be  construed 
fairly,  liberally,  and  on  broad,  general  lines,  in  order 
that  it  may  accomplish  the  great  purposes  of  its 
founders,  and  carry  into  effect  the  principles  of  gov- 
ernment for  which  it  was  organized.  It  presupposes 
a  "  perpetual  mutability  "  in  society,  and  a  "  perpet- 
ual flexibility "  in  adapting  itself  to  the  national 
wants,  habits,  and  aspirations.  "  The  powers  which 
are  conferred,  the  restrictions  which  are  imposed, 
the  authorities  which  are  exercised,  the  organization 
and  distribution  thereof  which  are  provided,  are  in 
each  case  for  the  same  object,"  —  the  common  benefit, 
security,  and  happiness  of  the  people.  "  It  is  a  con- 
stitution we  are  expounding,"  exclaimed  Marshall ; 
and  Marshall's  decisions  are  the  incarnation  of  ra- 
tional interpretation  and  common  sense. 

Such  has  been  the  attitude  of  the  courts  and 
lawyers  in  the  ever-existing  struggle  between  the  rules 
of  positive  law  and  advancing  civilization.  They 
have  striven  to  keep  the  law  in  harmony  with  social 
progress,  to  make  it  more  reasonable  as  social  neces- 
sities and  public  sentiment  have  demanded.  Ever 
recognizing  that  "the  matter  changeth,  the  custom, 
the  contracts,  the  commerce,  the  dispositions,  educa- 
tions, and  tempers  of  men  and  societies,"  they  have 
conceived  theories,  invoked  doctrines,  and  inaugurated 
instrumentalities  to  relieve  the  situation.  They  have 
carried  on  judicial  legislation  from  the  infancy  of  the 


LAW  AND  REASONABLENESS      105 

law  in  order  that  it  might  advance  with  society.  By 
the  adoption  of  broad  and  elastic  rules  of  interpre- 
tation, they  have  maintained,  in  large  measure,  the 
supreme  law  of  the  land  in  harmony  with  national 
growth ;  and  they  have  stood  as  a  barrier  against  the 
enforcement  of  capricious  and  arbitrary  laws  enacted 
by  the  great  remedial  agency  upon  which  the  com- 
munity now  mainly  relies. 

The  history  of  jurisprudence,  as  we  have  seen,  finds 
society,  in  progressive  nations,  always  in  advance  of 
the  law.  The  evolution  of  law  follows,  and  never 
precedes,  the  evolution  of  society.  Solon  declared  he 
gave  the  Athenians  the  only  laws  they  were  fitted  to 
receive.  Nor  can  the  law  arrest  social  progress,  though 
it  may  temporarily  retard  it.  The  great  forces  which 
govern  and  give  direction  to  the  life  of  a  people  lie 
beyond  the  control  of  legal  rules.  The  law  must 
accept  the  situation.  It  can  only  strive  to  make  its 
rules  conform  to  social  conditions.  It  can  only 
"move  towards  existing  conceptions  of  right,  justice, 
humanity,  reason,  and  public  policy."  Nor  can  the 
law  materially  change  actual  conditions.  It  is  impos- 
sible to  legislate  society  into  righteousness,  justice,  or 
freedom.  It  took  a  hundred  years  for  the  Norman 
kings  to  force  the  feudal  system  upon  England ;  and 
at  the  end  of  that  long  conflict  the  great  body  of 
ancient  customs  and  usages  which  were  congenial  to 
the  English  people  remained  undisturbed.    Commerce 


106  ADDRESSES 

and  inventions  have  brought  mankind  in  closer  touch 
than  ever  before.  We  hope  that  war  in  time  will 
cease ;  but  it  must  not  be  forgotten  that  arbitration 
will  not  become  an  enforceable  canon  of  international 
law  until  the  great  mass  of  the  civilized  people  of  the 
world  believe  in  and  desire  that  method  of  settling 
controversies  between  nations. 

The  purpose  and  end  of  law  are  the  welfare  of 
society  and  the  happiness  of  the  people.  The  law 
should  always  be  viewed  from  the  standpoint  of  so- 
ciety, and  not  from  the  standpoint  of  the  law  itself. 
Society  is  entitled  to  have  such  laws  as  it  desires,  and 
it  will  obey  none  other.  The  law  is  made  for  society, 
and  not  society  for  the  law.  The  interests  of  society 
are  primary;  the  interests  of  the  law  secondary. 
Society  is  the  master,  and  the  law  its  handmaid.  The 
law  must  march  with  society;  the  Constitution  must 
march  with  the  nation. 

In  our  day  and  generation  we  are  confronted  with 
the  same  problem  of  adapting  the  old  rules  of  law 
to  the  new  facts  of  life ;  of  keeping  them  in  accord 
with  commercial  and  industrial  growth  and  national 
development.  There  is  no  way  of  making  the  law 
sufficiently  elastic  and  mutable  to  meet  fully  the  ever- 
varying  wants  of  society  in  the  presence  of  an  expand- 
ing civilization.  Our  duty  lies  in  the  effort  to  make 
it,  as  far  as  possible,  fit  and  suitable  to  new  conditions 
as  they  present  themselves. 


LAW  AND  REASONABLENESS      107 

Almost  every  important  case  covers  a  group  of 
facts  which  are  different  from  any  other  recorded  case. 
Analogies,  settled  principles,  cases  nearly  similar,  may 
help,  but  they  neither  satisfy  the  mind  nor  meet  the 
real  issue.  If  it  be  a  constitutional  question,  there  are 
probably  included  in  that  group  new  facts  or  circum- 
stances which  represent  national  growth  and  changed 
social  relations.  These  are  the  important  things  to 
consider  in  reaching  a  proper  conclusion,  if  the  law 
is  to  be  kept  in  harmony  with  civilization. 

So,  too,  a  case  may  arise  which  includes  in  its 
group  of  facts  new  commercial  or  industrial  condi- 
tions. In  the  determination  of  such  a  case  society 
demands  that  these  new  elements  receive  recogni- 
tion, that  the  law  may  conform  to  the  actual  business 
of  life. 

It  is  by  grappling  with  the  great  living  realities 
that  legal  conclusions  are  reached  which  meet  social 
necessities.  Laws  should  be  interpreted  and  decisions 
rendered  in  the  spirit  of  the  present,  not  of  the  past. 
Logic  and  due  regard  for  precedent  should  be  com- 
bined with  the  statesman's  breadth  of  vision.  Con- 
sistency may  be  extended  too  far;  it  is  sometimes 
a  doubtful  virtue.  Had  Jefferson  been  consistent,  we 
should  have  lost  the  Louisiana  purchase.  Had  Lin- 
coln been  consistent,  slavery  would  not  have  been 
abolished.  The  obligation  we  owe  is  not  to  the  past, 
but  to  the  present.     Ancient  civilization  looked  to  the 


108  ADDRESSES 

past;  Christian  civilization  looks  to  the  future.  The 
ancient  idea  of  a  perfect  primitive  society  is  a  poetic 
fiction;  the  modern  idea  of  a  society  growing  more 
humane,  more  just,  more  reasonable,  is  a  reality. 

In  this  spirit  let  us  carry  on  the  work  which  society 
has  largely  committed  to  our  hands.  Recognizing  the 
usefulness  of  legal  forms  and  precedents,  may  we  ever 
hold  fast  to  the  great  truth  that  reason  is  the  life  and 
soul  of  the  law.  May  we  rise  to  the  lofty  conceptions 
of  the  Law  of  Nature,  —  harmony,  simplicity,  uni- 
formity, —  and  may  we  call  to  our  aid  her  precepts  of 
universal  reason ;  and,  extending  our  vision  to  law  as 
the  order  of  the  universe,  may  we  draw  inspiration 
from  Hooker's  sublime  words :  "  Her  seat  is  the 
bosom  of  God,  her  voice  the  harmony  of  the  world, 
all  things  in  Heaven  and  Earth  do  her  homage,  —  the 
very  least  as  feeling  her  care,  and  the  greatest  as  not 
exempted  from  her  power." 


RHODE   ISLAND  109 


CONTRIBUTIONS     OF    RHODE    ISLAND 
TO    THE    AMERICAN    UNION 

Address  delivered  at  the  Louisiana  Purchase  Exposition  at  St.  Louis 
on  Rhode  Island  Day,  October  5,  1904. 

Mr.  President,  Your  Excellency, 

Ladies,  and  Gentlemen: 

THE  magnitude  and  character  of  this  com- 
memoration of  a  national  event,  next  only 
in  importance  to  the  Declaration  of  In- 
dependence, the  adoption  of  the  Constitution,  and 
the  Civil  War,  are  in  harmony  with  the  lofty  senti- 
ment which  inspired  it.  Fifteen  years  after  the  adop- 
tion of  the  Constitution,  the  United  States  acquired 
the  vast  domain  embraced  within  the  Louisiana  Pur- 
chase. Under  the  Federal  system  then  established, 
this  wilderness  has  been  transformed  into  twelve 
flourishing  States,  with  a  residue  of  territory  soon 
to  become  States. 

The  marvellous  spectacle  which  is  here  presented 
is  simply  the  expression  in  material  form  of  the  patri- 
otic gratitude  of  the  great  people  who  now  dwell 
within  these  boundaries,  —  gratitude  for  the  provi- 
dential circumstances  which  led  to  the  acquisition  of 
this  territory,  for  a  form  of  government  under  whose 


110  ADDRESSES 

fostering  care  and  protecting  arm  the  people  were 
enabled  to  organize  into  self-governing  communities 
and  become  incorporated  into  this  sisterhood  of 
States;  gratitude  for  the  liberty  and  enlightenment 
and  all  the  countless  blessings  which  have  flowed 
from  a  hundred  years  of  membership  in  the  Ameri- 
can Union.  Surely  the  grandeur  of  this  celebration 
rises  no  higher  than  the  sentiment  which  gave  it 
birth. 

It  is  the  spirit  of  nationality  that  pervades  and 
animates  this  scene.  Beneath  the  energy  and  daring 
which  converted  this  tract  of  forest  into  a  moving 
world  of  civilization  and  art,  beneath  the  magni- 
tude and  comprehensiveness  of  this  undertaking 
and  the  splendor  of  its  execution,  beneath  this 
gathering  of  nations,  States,  and  congresses,  we 
see  only  the  reflection  of  the  love  of  America 
and   her   institutions. 

These  structures  of  imposing  architecture,  with 
their  wealth  of  statue  and  column;  these  land- 
scapes and  gardens,  cascades  and  fountains;  this 
object-lesson  of  man's  handiwork,  progress,  and 
achievements;  this  assemblage  of  the  world's  prod- 
ucts, processes,  and  resources,  of  the  best  works  in 
every  department  of  human  activity,  —  art,  science, 
invention,  industry,  agriculture,  education,  —  all  these 
wonderful  creations  of  form  and  color,  harmony  and 
beauty,  were   conceived   in   the   spirit   of  patriotism 


RHODE   ISLAND  111 

and  dedicated  to  the  education  and  advancement  of 
all  nations,  tribes,  and  races. 

In  the  promotion  of  material  progress,  the  evo- 
lution of  new  ideas,  the  elevation  of  artistic  and 
industrial  standards,  through  this  commingling  of 
different  peoples  in  friendly  competition ;  in  the  por- 
trayal of  the  steps  by  which  nations  may  advance 
through  this  object-lesson  of  all  grades  of  civiliza- 
tion ;  in  the  attainment  of  a  higher  and  broader  cul- 
ture through  the  educational  forces  which  are  here 
gathered;  in  the  unity  and  coincidence  of  thought 
and  development  of  the  human  race  which  these 
exhibits  inculcate ;  in  the  common  brotherhood  of 
man  and  universal  peace  of  which  this  Exposition  is 
the  exponent  and  herald,  —  we  behold  teachings  and 
results  which  are  in  harmony  with  the  lofty  concep- 
tion they  represent,  —  the  American  Union. 

In  the  making  of  that  Union  which  inspired  this- 
commemoration,  Rhode  Island  has  borne  a  distin- 
guished part.  It  required  two  pilgrimages  to  solve 
the  problem  of  free  government.  The  compact  on 
board  the  Mayflower  must  be  supplemented  by  the 
compact  on  the  shores  of  Narragansett  Bay,  before 
we  reach  the  foundations  on  which  rests  the  union 
of  these  States.  To  a  democratic  theocracy  clothed 
with  civil  power,  Rhode  Island  added  the  vital  and 
saving  element  of  untrammelled  religious  freedom,, 
the   absolute  separation   of   Church   and   State,   the 


112  ADDRESSES 

declaration  of  intellectual  liberty  of  thought  and 
speech  in  its  modern  and  broadest  sense.  No  Fed- 
eral Union  could  have  been  formed,  or,  if  formed, 
have  long  survived,  without  the  introduction  into  the 
Constitution  of  this  master  principle  which  Rhode 
Island,  one  hundred  and  fifty  years  before,  incorpo- 
rated for  the  first  time  into  a  civil  government. 

Religion  was  the  most  potent  force  which  entered 
into  colonial  life.  It  held  society  together.  It  shaped 
the  destiny  of  the  people.  It  was  religion  that  drove 
our  forefathers  from  England.  It  was  the  fear  of  a 
church  establishment,  next  to  the  Stamp  Acts,  which 
led  to  the  separation  from  the  mother  country.  It 
was  the  apprehension  of  the  exercise  of  authority  in 
religious  concerns  that  almost  wrecked  the  Consti- 
tution, and  its  adoption  was  finally  secured  only 
with  the  understanding  that  this  danger  would  be 
speedily  removed  by  amendment. 

In  the  existing  religious  intolerance  and  diversity 
of  sects  there  was  an  element  of  disintegration  which 
all  the  wisdom  and  statesmanship  of  the  framers  could 
not  meet,  and  which  could  be  overcome  only  by  the 
recognition  of  the  fundamental  truth  on  which  Rhode 
Island  was  founded.  It  requires  only  the  statement 
to  carry  conviction  that,  on  any  other  basis  than 
Rhode  Island  soul  liberty,  the  attempt  would  have 
proved  fruitless  to  unite  in  Federal  bonds  the  Puri- 
tans of  Massachusetts,  the  Quakers  of  Pennsylvania, 


RHODE   ISLAND  113 

the  Catholics  of  Maryland,  the  High  Churchmen  of 
New  York,  the  Dutch  Protestants  of  New  Jersey, 
the  Cavaliers  of  Virginia,  the  Huguenots  of  South 
Carolina,  and  the  Methodists  of  Georgia. 

The  Rhode  Island  doctrine  of  religious  freedom 
stands  as  the  first  amendment  to  the  Federal  Consti- 
tution, and  is  incorporated  into  the  organic  law  of 
every  State.  This  is  the  immortal  principle  which 
Rhode  Island  has  added  to  the  structure  of  our  gov- 
ernment, to  the  making  of  America.  In  its  expan- 
sion and  irradiation,  there  is  found  the  cohesive  force 
which  has  perpetuated  this  union  of  States.  In  the 
absence  of  this  instrumentality,  it  would  have  been 
impossible  to  weld  together  the  heterogeneous  popu- 
lation of  this  country,  drawn  from  so  many  nations 
and  races,  differing  in  language,  religion,  habit,  and 
political  ideas,  into  one  homogeneous  Federal  Union, 
one  American  people.  It  is  not  our  geographical 
position,  natural  resources,  distinctions  of  race,  which 
have  made  America,  for  other  nations  have  had  simi- 
lar advantages ;  but  it  is  the  energy,  the  incentive,  the 
freedom  from  discord,  the  desire  to  know  and  excel  in 
everything,  derived  from  the  intellectual  liberty  of 
which  Rhode  Island  was  the  first  example  and  fore- 
runner. If,  in  this  festival  of  the  world's  progress, 
the  achievements,  wealth,  and  power  of  the  United 
States  bear  a  most  favorable  comparison  with  other 
countries,  it  is  to  the  great  principle  which  Rhode 


114  ADDRESSES 

Island  implanted  into  our  institutions  that  we  must 
look  for  the  underlying  and  potent  cause. 

But  what  Rhode  Island  first  gave  to  the  world  has 
a  deeper  and  broader  significance.  Religious  liberty 
was  a  turning-point  in  universal  history.  It  was  the 
beginning  of  modern  government.  It  stands  "  in  the 
background  of  every  democratic  struggle  in  Europe." 
Upon  the  tomb  of  Jefferson,  in  the  epitaph  written  by 
himself,  his  authorship  of  *'  the  statute  of  Virginia  for 
religious  freedom,"  one  hundred  and  fifty  years  after 
Roger  Williams,  is  ranked  next  in  importance  to  his 
authorship  of  the  Declaration  of  American  Independ- 
ence. The  Columbian  Exposition,  upon  a  comparison 
of  the  world's  achievements,  brought  in  the  verdict: 
"  Toleration  in  religion,  the  best  fruit  of  the  last  four 
centuries."  In  the  presence  of  the  far-reaching  and 
momentous  consequences  which  have  flowed  from 
this  doctrine  of  soul  liberty,  Rhode  Island  is  entitled 
to  high  distinction  among  her  sister  States,  and  her 
founder  to  the  imperishable  honor,  admiration,  and 
gratitude  of  all  mankind. 

There  is  another  doctrine,  first  promulgated  by 
Rhode  Island,  which  has  proved  important  to  the  sta- 
bility of  the  American  Union.  The  novel  construc- 
tive feature  which  the  framers  added  to  the  science  of 
government,  and  embodied  in  the  Constitution,  was 
the  judiciary.  The  keystone  of  this  branch  of  the  gov- 
ernment resides  in  the  power  of  the  Supreme  Court 


RHODE   ISLAND  115 

to  declare  what  the  organic  law  is,  and  thus  to  hold  in 
check  legislative  omnipotence.  This  power  finds  ex- 
pression in  the  doctrine  that  the  Supreme  Court  may- 
declare  unconstitutional  and  void  an  act  of  the  legis- 
lature. Seventeen  years  before  Marshall,  in  Marbitry 
V.  Madison,  established  this  doctrine,  the  same  prin- 
ciple was,  for  the  first  time,  enunciated  by  the  Supe- 
rior Court  of  Rhode  Island  in  Trevett  v.  Weeden ; 
and  the  reasoning  of  Varnum,  in  his  masterly  argu- 
ment in  support  of  this  judicial  prerogative,  is  closely 
followed  by  Marshall  in  his  opinion.  It  is  also  an 
interesting  circumstance  which  may  be  noticed  in  this 
connection,  that  in  1639  the  town  of  Portsmouth  ap- 
pointed a  court  with  a  jury  of  twelve  men  "  to  doo 
right  betwixt  man  and  man  "  —  the  first  act  known  to 
colonial  history  which  separated  the  judicial  from  the 
executive  and  legislative  branches  of  the  government. 
But  the  contributions  of  Rhode  Island  to  the 
American  Union  are  of  wider  import.  Roger  Wil- 
liams was  the  first  modern  statesman,  and  Rhode 
Island  was  the  first  modern  democracy.  She  was 
more  than  a  century  in  advance  of  her  time.  For 
her  early  government  there  was  no  precedent.  It 
was  a  novel  experiment,  —  an  anomaly  in  history. 
The  ablest  statesmen  and  scholars  of  the  time  de- 
clared that  such  institutions  were  subversive  of  social 
order.  The  principles  on  which  Rhode  Island  was 
founded  have  become  the  cardinal  principles  of  free 


116  ADDRESSES 

government.  She  gave  these  principles  to  our  politi- 
cal system,  since  she  was  the  earliest  to  incorporate 
them  into  a  civil  compact. 

Rhode  Island  was  founded  upon  self-government, 
religious  freedom,  human  equality,  and  justice.  De- 
nying the  power  of  the  Crown  to  confer  sovereignty 
by  right  of  discovery,  she  derived  title  to  her  territory 
by  direct  purchase  from  the  Indians,  by  the  deed 
of  submission  of  the  great  sachems  in  1643,  trans- 
ferring the  jurisdiction  over  the  Narragansett  lands 
to  the  King  of  England,  and  by  the  King's  con- 
firmation of  title  in  the  colonists  by  the  charter  of 
1663. 

The  Providence  compact  of  1637,  in  which  the 
inhabitants  submitted  themselves  to  a  government 
"  only  in  civil  things,"  is  the  earliest  written  instru- 
ment of  a  free  government.  It  was  a  government 
limited  to  civil  powers  vested  in  the  body  of  free- 
men upon  terms  of  absolute  equality.  The  code  of 
1647,  adopted  by  the  General  Assembly  of  all  the 
people  upon  the  union  of  the  towns  for  mutual 
protection  under  the  first  charter,  in  its  declaration 
of  the  principles  of  a  free  government,  its  bill  of 
rights,  its  humane  spirit,  its  comprehensiveness, 
boldness,  and  simplicity,  anticipated  by  more  than 
a  century  the  legislation  of  the  other  colonies. 
Here  was  laid  down,  for  the  first  time,  the  funda- 
mental doctrine  which  is  subsequently  found  in  the 


RHODE   ISLAND  117 

Declaration  of  Independence,  and  which  has  become 
the  basic  tenet  of  democratic  institutions,  —  that  gov- 
ernment rests  upon  the  "  free  and  voluntary  consent 
of  all  or  the  greater  part  of  the  jFree  inhabitants." 
It  contained  provisions  for  referring  all  laws  back 
to  the  people  for  confirmation  or  rejection.  It  was 
declared  to  be  "a  wholesome  liberty  for  the  whole 
or  major  parte  of  the  free  inhabitants  to  consider 
laws  made  by  the  Commissioners'  Courts ;  and  upon 
finding  discommodity  in  any  law  made  by  the  sayd 
Courts,  then  orderly  to  show  their  dislike,  and  so 
to  invalidate  such  law."  We  have  here  the  first 
example  in  this  country  of  a  Federal  Union.  It  was 
composed  of  independent  towns.  We  have  here,  also, 
the  first  example  of  the  modern  doctrine  of  referen- 
dum, which  was  called  a  "  wholesome  liberty." 

These  novel  and  advanced  doctrines  led  the  his- 
torian Bancroft  to  observe  with  truth :  "  Had  the 
territory  of  the  State  corresponded  with  the  impor- 
tance and  singularity  of  the  principles  of  its  early 
existence,  the  world  would  have  been  filled  with 
wonder  at  the  phenomena  of  its  history."  If  our 
Federal  Union  has  been  perpetuated  for  more  than 
a  century  through  the  breadth  of  its  liberty  and  the 
discipline  of  its  people  in  the  art  of  self-government, 
then  Rhode  Island  should  be  accorded  special  recog- 
nition on  this  day  for  the  "lively  experiment"  she 
inaugurated  on  the  shores  of  Narragansett  Bay  one 


118  ADDRESSES 

hundred  and  fifty  years  before  the  adoption  of  the 
Federal  Constitution. 

The  great  preparatory  step  to  the  formation  of 
the  Federal  Union  was  the  Revolutionary  War.  In 
the  events  which  led  to  that  war  and  its  successful 
termination,  Rhode  Island  took  a  leading  part.  Her 
practical  independence  of  the  Crown  and  her  early 
institutions  had  bred  an  intensely  democratic  spirit. 
She  was  foremost  in  resisting  the  encroachments  of 
the  mother  country  and  in  her  assertion  of  complete 
independence.  Two  months  before  the  Declaration 
of  Independence,  Rhode  Island  severed  her  alle- 
giance to  the  British  Crown.  She  was  the  first  sover- 
eign State.  Her  opposition  to  the  Stamp  Acts  was 
the  earliest  and  most  violent.  She  committed  the 
first  overt  act  of  resistance.  She  shed  the  first 
blood  of  the  Revolution  in  the  capture  and  burn- 
ing of  the  Gaspee.  Her  privateers,  manned  by  her 
intrepid  seamen,  were  the  scourge  of  British  com- 
merce. Her  subscriptions  to  the  Continental  loans 
were,  relatively  to  her  population  and  wealth,  far  in 
excess  of  those  of  any  other  Colony.  She  was  the 
first  State  to  take  formal  action  respecting  a  Con- 
tinental Congress,  and  the  first  to  elect  delegates. 
Six  months  before  Patrick  Henry  exclaimed  in  the 
Virginia  Convention,  "  The  war  is  inevitable  —  and 
let  it  come,"  Stephen  Hopkins  of  Rhode  Island 
declared   in    the   first   Continental    Congress,   which 


RHODE   ISLAND  119 

sought  only  "a  redress  of  grievances"  by  petition: 
*'  Powder  and  ball  will  decide  this  question,  and  any 
of  you  who  cannot  bring  your  minds  to  this  mode 
of  adjusting  the  question  had  better  retire  in  time." 
It  was  through  the  efforts  of  Rhode  Island  that  the 
Continental  Congress  passed  the  first  act  creating 
an  American  navy,  and  its  command  was  placed 
in  the  hands  of  a  Rhode  Island  officer.  At  the 
close  of  the  Revolutionary  War  General  Greene 
ranked  next  to  Washington.  It  was  one  Rhode 
Island  Commodore  Perry  who,  after  the  Battle  of 
Lake  Erie,  wrote  those  words  which  have  since 
become  the  inspiration  and  motto  of  the  American 
navy :  "  We  have  met  the  enemy,  and  they  are 
ours."  It  was  another  Rhode  Island  Commodore 
Perry  who  carried  western  civilization  to  Japan. 

It  is  not  strange  that  Rhode  Island  deliberated 
longer  than  the  other  States  before  adopting  the 
Federal  Constitution,  in  the  absence  from  that  instru- 
ment of  a  bill  of  rights  securing  the  personal  liberty 
for  which  she  had  ever  struggled,  and  which  was 
the  corner-stone  of  her  institutions.  If  she  hesitated, 
something  must  be  pardoned  to  the  spirit  of  liberty. 
It  should  also  be  borne  in  mind  that  ratification 
was  secured  in  many  of  the  States  only  by  slender 
majorities,  and  with  the  understanding  that  the  first 
ten  amendments  would  be  speedily  adopted.  Since 
her  admission,  no  other  State  has  shown  a  greater 


120  ADDRESSES 

devotion  to  the   Union,  nor   a  loftier  patriotism  in 
the  hour  of  trial. 

There  are  other  features  in  Rhode  Island's  history 
which  closely  touch  the  life  and  well-being  of  the 
nation.  It  was  commerce  and  the  necessity  of  its 
regulation  which  led  to  the  adoption  of  the  Federal 
Constitution.  Since  the  adoption,  the  unifying  in- 
fluences of  commerce,  trade,  and  manufactures  have 
promoted  a  national  spirit,  cemented  the  bonds  of 
union,  and  made  us  one  people.  In  commerce  and 
manufactures  Rhode  Island  is  pre-eminently  distin- 
guished. The  sea  loves  freedom,  and  freedom  loves 
the  sea.  Her  geographical  features,  combined  with 
her  democratic  institutions,  shaped  and  controlled 
the  activities  of  her  people.  They  fostered  a  com- 
mercial spirit,  and  her  beautiful  bay  invited  the 
commerce  of  the  world.  They  bred  a  sturdy,  inde- 
pendent, enterprising,  seafaring  race,  with  the  liberal 
spirit  and  hospitality  which  are  born  of  the  sea.  In 
the  French  and  Spanish  wars  her  privateers  swept 
the  main,  and  her  annals  are  full  of  daring  deeds. 
At  the  close  of  the  eighteenth  century  the  sails 
of  her  merchantmen  whitened  every  ocean,  and  her 
merchant  princes  brought  riches  and  culture  to  the 
State.  When  her  commerce  was  destroyed  by  forces 
beyond  her  control,  she  turned  with  the  same  en- 
terprising spirit  to  her  rivers  and  waterfalls  for 
the  development  of  manufactures.     From  a  race  of 


RHODE   ISLAND  121 

ship-builders  and  merchants,  she  became  a  race  of 
mill-builders  and  manufacturers.  In  the  person 
of  Samuel  Slater  she  founded  the  cotton  industry 
of  the  country.  She  is  the  birthplace  and  home  of 
American  manufactures.  From  the  feeblest  of  the 
Colonies  and  the  smallest  in  territory,  she  has  be- 
come relatively  the  greatest  State  in  population 
and  wealth.  Within  her  borders  are  found  all  the 
elements  which  enter  into  a  free,  enlightened,  and 
prosperous  commonwealth.  She  stands  in  the  front 
rank  of  progress,  not  alone  in  material  things,  but 
in  those  which  are  higher,  —  the  liberal  spirit,  hospi- 
tality, and  culture  of  her  people.  In  the  industrial 
and  mechanical  arts,  in  invention,  in  the  skill  of 
her  artisans,  she  takes  a  leading  position.  In  the 
fashioning  of  silver  and  gold  she  is  unexcelled.  In 
the  manufacture  of  cotton,  wool,  machinery,  tools, 
and  other  products,  she  has  few  rivals.  In  full  sym- 
pathy and  accord  with  the  sentiment  which  inspired 
this  Exposition,  and  with  its  aim  and  purpose,  she 
has  brought  here  her  best  works  in  the  industrial 
arts  and  other  exhibits  of  a  higher  character,  illus- 
trative of  many  phases  of  the  life  of  her  people  and 
the  lines  along  which  they  have  travelled  in  reaching 
their  present  high  plane  of  development.  But  the 
noblest  exhibit  which  Rhode  Island  brings  to  this 
commemoration  of  a  century  of  membership  in  the 
American  Union  is  her  history. 


122  ADDRESSES 

This  Federal  Union  has  stood  for  one  hundred  and 
fifteen  years.  It  has  surmounted  the  gravest  peril 
to  which  it  was  exposed,  —  a  disputed  sovereignty. 
It  has  proved  to  be  the  highest  and  most  perfect 
form  of  government.  It  combines  the  power  and 
strength  of  a  great  nation  with  local  self-govern- 
ment and  the  largest  liberty.  It  has  the  capacity 
of  assimilating  many  different  races,  and  moulding 
them  into  one  homogeneous  people.  It  has  added 
State  after  State  to  the  Union,  and  its  territory  now 
stretches  from  ocean  to  ocean  and  to  possessions 
beyond.  It  has  demonstrated  the  adaptability  of  a 
Federal  system  to  extend  over  a  continent;  and  in 
the  union  of  these  imperial  commonwealths  it  has 
afforded  a  model  and  a  precedent  for  the  federation 
of  the  world. 

The  era  of  constructive  government  has  passed. 
The  struggles  of  our  fathers  have  ended.  Inde- 
pendence, liberty,  and  a  stable  Federal  compact  are 
accomplished  facts.  We  are  a  nation  in  all  things 
which  concern  the  general  welfare,  while  the  individ- 
ual is  protected  by  the  organic  law  which  covers 
every  known  personal  right.  The  system  has  been 
perfected.  The  structure  is  complete.  Our  con- 
tinued safety  no  longer  lies  in  adding  to  or  chang- 
ing the  framework  of  our  government.  It  is  not 
the  American  Union  or  democracy  which  is  now 
on  trial,  but  the  American  people. 


RHODE  ISLAND  123 

The  grave  questions  which  confront  society  to- 
day are  economic  and  industrial  rather  than  political. 
They  involve  the  regulation  and  equalization  of  social 
conditions.  These  issues  lie  outside  of  legislation. 
They  rest  in  the  domain  of  morals.  Government 
and  laws  have  their  limitations.  They  cannot  make 
wealth  without  labor.  They  cannot  make  men  of 
equal  capacity  and  energy.  If  these  questions  seem 
insoluble,  if  the  outlook  at  times  appears  dark,  let 
us  take  courage  and  inspiration  from  the  seemingly 
insurmountable  obstacles  which  our  fathers  overcame 
in  the  making  of  the  nation.  Let  the  mind  run 
back  to  the  midnight  winter  of  Valley  Forge;  to 
the  hour  when  the  Constitution  hung  trembling  in 
the  balance;  to  the  time  when  brother  and  brother 
throughout  the  land  were  divided  into  hostile  camps. 

Deeper  than  the  logic  of  the  rights  of  capital  and 
labor,  deeper  than  the  academic  discussion  of  individ- 
ualism and  socialism,  the  solution  of  these  questions 
will  be  found  in  the  broad  humanity,  the  sense  of 
fairness  and  justice,  of  the  American  people;  just  as, 
in  the  building  of  the  nation,  we  discovered  that 
beneath  the  logic  of  constitutional  sovereignty,  be- 
neath the  final  analysis  of  political  issues,  our  safety 
lay  in  the  intelligent  judgment  and  sound  sense  of  the 
great  body  of  the  people. 

The  same  broad  and  liberal  spirit  that  made  us  a 
nation  must  be  directed  to  the  social  and  industrial 


124  ADDRESSES 

problems  of  the  time.  As  it  was  the  spirit  of  national 
unity  that  built  up  the  Union,  so  it  will  be  the  spirit  of 
humanity  which  will  preserve  society.  As  the  nation 
is  one  and  indivisible,  so  the  whole  people  are  one  and 
indivisible.  The  well-being  of  the  entire  community 
is  inseparable  from  the  well-being  of  each  individual 
of  which  it  is  composed.  All  classes  are  indissolubly 
bound  together.  When  we  fail  to  realize  this  truth, 
we  become  un-American, — a  class  apart.  Our  destiny 
lies  hidden  in  the  spirit  which  teaches  that  we  cannot 
be  of  the  rich  unless  we  are  of  the  poor,  we  cannot  be 
of  the  capitalist  unless  we  are  of  the  wageworker,  we 
cannot  be  of  the  North  unless  we  are  of  the  South, 
we  cannot  be  of  America  unless  we  are  of  the  world. 
This  is  the  true  American  spirit  which  made  the 
nation  and  will  transmit  it  to  our  posterity.  This  is 
the  realization  of  the  great  lesson  which  this  Expo- 
sition inculcates,  —  the  unity  of  the  human  race  and 
the  ties  which  bind  us  to  all  mankind. 


THE   PROBLEM   OF   GOVERNMENT     125 


AMERICA'S  SOLUTION  OF  THE  PROBLEM 
OF   GOVERNMENT 

Fourth  of  July  Oration  delivered  in  Faneuil  Hall  before  the  City 
Council  and  Citizens  of  Boston  at  the  Celebration  of  the  One 
Hundred  and  Twenty-ninth  Anniversary  of  the  Independence 
of  the  United  States,  July  4,  1905. 

Mr.  Mayor  and  Fellow  Citizens: 

ON  the  Fourth  of  July,  1776,  our  fathers 
ceased  to  be  colonists  of  Britain,  and  be- 
came an  independent  people.  On  that  day 
the  representatives  of  the  United  States  of  America 
in  General  Congress  assembled,  at  the  City  of  Phila- 
delphia, declared  that  the  thirteen  united  Colonies 
possessed  "full  power  to  levy  war,  conclude  peace, 
contract  alliances,  establish  commerce,  and  to  do  all 
other  acts  and  things  which  independent  States  may 
of  right  do." 

On  that  day,  upon  a  new  continent,  and  upon  a 
magnitude  hitherto  unknown,  was  begun,  in  the 
w^ords  of  Bryce,  "  the  most  remarkable  experiment 
in  government  the  world  has  yet  witnessed." 

The  history  of  mankind  for  three  thousand  years 
pointed  against  the  success  of  this  experiment.  The 
teachings  of  philosophers  and  statesmen  of  all  ages 


126  ADDRESSES 

foretold  its  failure.  Many  of  our  own  great  leaders 
were  distrustful  of  the  result. 

One  hundred  and  twenty-nine  years  have  passed 
since  that  eventful  scene  in  Independence  Hall,  and 
lo !  we  now  behold,  as  the  outcome  of  this  experi- 
ment, the  fairest  picture  of  government  which  ever 
met  the  eye  of  man.  Oh,  that  the  great  patriots 
of  this  storm  centre  of  Revolution  might  look  down 
upon  this  scene!  Would  that  the  heroic  band  who 
signed  the  Declaration  might  gaze  upon  their  country 
to-day !  Would  that  all  the  great  founders  of  the  Re- 
public might  behold  this  United  States  of  America 
on  this  Fourth  of  July,   1905  ! 

Imagine  the  "transports  of  enthusiasm"  of  John 
Adams,  as,  through  "the  rays  of  ravishing  light  and 
glory,"  he  finds  his  prophecy  fulfilled  a  thousand  iold. 
Picture  to  yourselves  the  thoughts  of  Otis  —  that 
"  flame  of  fire  "  in  whom  "  Independence  was  born  '* 

—  as  he  perceives  the  "liberties"  which  the  people 
here  enjoy!  Call  to  your  minds,  as  he  looks  upon 
this  wonderful  progress  of  American  freedom,  the 
joyous  emotions  of  that  proscribed  and  inflexible 
patriot  statesman,  Samuel  Adams,  whom  no  fear  of 
death  could  induce  "  to  abandon,  the  righteous  cause 
of  his  country."  Think  of  the  exaltation  of  John 
Hancock,  could  he  look  down  upon  us  in  this  hour 

—  he  who  put  the  question,  "  Shall  the  Declaration 
be  adopted  ? "  and  who,  at  the  risk  of  life  and  fortune. 


THE   PROBLEM   OF   GOVERNMENT     127 

affixed  his  imperishable  signature  to  that  Charter  of 
Liberty.  With  what  an  overwhelming  sense  of  grati- 
tude would  Jefferson  witness  the  triumph  of  the 
immortal  principles  of  the  Declaration  in  the  New 
World,  and  their  seemingly  rapid  conquest  of  the 
Old  !  What  feelings  of  proud  satisfaction  would  fill 
the  lofty  soul  of  Hamilton  as  he  surveys  the  stability, 
the  elasticity,  and  the  reserved  strength  of  the  Con- 
stitution after  the  lapse  of  more  than  a  hundred 
years !  Conceive  the  joy  of  Franklin  as  he  realizes 
the  commanding  position  of  the  United  States  among 
the  nations  of  the  earth,  and  those  splendid  achieve- 
ments of  American  diplomacy  which  are  fast  making 
this  country  the  arbiter  of  the  peace  and  destinies 
of  the  world!  And  last,  and  greatest  of  all,  let  us 
contemplate  Washington  as  he  gazes  upon  the  power, 
the  renown,  and  the  grandeur  of  his  country  to-day, 
and  contrasts  it  with  the  America  of  the  Revolu- 
tion, or  the  America  as  it  last  met  his  mortal  vision, 
—  a  peaceful,  prosperous,  progressive,  law-abiding, 
enlightened  democracy  of  eighty  millions  of  people, 
extending  under  the  Federal  Constitution  over  a 
continental  area,  embracing  forty-five  great  States 
and  island  possessions  which  circle  half  the  globe! 

On  this  anniversary  of  the  nation's  birth  we  may 
well  ask  ourselves  what  is  the  cause  of  all  this  —  what 
is  the  explanation  of  this  American  phenomenon  in 
government  which  has  so  astonished  the  world,  and 


128  ADDRESSES 

upset  all  the  teachings  and  predictions  of  European 
thinkers  and  statesmen  ?  How  has  it  happened  that 
the  United  States,  in  a  manner  and  upon  a  scale 
hitherto  unknown,  has  solved  this  problem  of  govern- 
ment, —  the  most  difficult  and  complex  of  all  human 
problems,  and  yet  the  most  momentous,  since  upon 
the  institutions  of  a  country  depend  the  well-being 
and  happiness  of  the  people?  There  must  be  some 
explanation,  some  underlying  cause.  Two  powerful 
nations,  one  in  the  Old  World  and  the  other  in  the 
New,  occupying  immense  tracts  of  territory,  started 
together  more  than  a  century  ago  to  solve,  upon  a 
vast  scale,  the  problem  of  government.  Why  has 
Russia  failed  and  America  succeeded  ?  Has  this 
country  discovered  a  new  brand  of  government  as 
well  as  of  diplomacy  ? 

The  solution  of  this  problem  becomes  the  more  re- 
markable when  we  reflect  that  the  United  States  has 
apparently  disregarded,  in  the  structure  of  its  govern- 
ment, every  previously  recognized  canon  of  stability 
and  unity.  It  has  ignored  the  strength  and  personal 
loyalty  of  monarchy,  the  wisdom  and  conservatism  of 
aristocracy.  It  has  not  depended  upon  the  superior 
knowledge,  experience,  and  leisure  of  any  class.  It 
has  taken,  historically  speaking,  the  two  weakest  forms 
of  government,  and  created  the  strongest  political  or- 
ganization in  the  history  of  mankind.  Philosophers 
have  ever  told  us  that  a  democracy  is  fickle,  short- 


THE   PROBLEM   OF   GOVERNMENT     129 

lived,  and  generally  corrupt  and  tyrannical.  They 
have  also  said  that  a  Federal  Union,  from  its  inherent 
nature,  is  the  most  complex,  delicate,  and  unstable 
form  of  government  known.  Disregarding  all  these 
admonitions,  the  American  people  have  adopted  both 
these  political  systems.  Here  is  exhibited  in  its  pur- 
est form,  compatible  with  the  representative  system,  a 
democracy,  a  government  by  the  people,  self-govern- 
ment. Here  also  is  exhibited  a  Federal  Union  in  its 
most  perfect  form  and  upon  a  vast  magnitude.  How 
has  it  come  to  pass  that  we  have  made  democracy  a 
success,  a  Federal  system  a  success  —  liberty,  equality, 
fraternity,  a  success  —  with  all  the  countless  blessings 
which  have  come  to  the  people  from  these  political 
conditions  ?  What  seed  has  been  planted  in  these  in- 
stitutions which  has  brought  forth  such  splendid  fruit  ? 
What  new  principle  in  government  has  America  dis- 
covered which  will  explain  her  wonderful  progress, 
her  unity,  and  her  strength.?  How  has  it  happened 
that  the  United  States  has  emerged  from  every  great 
national  crisis  stronger,  wiser,  and  more  confident  ? 
What  is  the  cohesive  force  in  these  institutions  which 
has  enabled  them  to  withstand  the  shock  of  civil 
war,  the  freeing  of  four  millions  of  slaves,  a  disputed 
Presidential  succession,  and  every  peril  to  which  the 
country  has  been  exposed  ?  To  what  unifying  influ- 
ence in  our  form  of  government  can  be  ascribed  the 
power  of  assimilating  and  moulding  into  one  homo- 

9 


130  ADDRESSES 

geneous  people  the  multitude  of  new-comers  from 
other  lands,  of  different  nationalities  and  traditions, 
who  have  made  America  their  home  ?  Why  is  it, 
if  by  chance  they  revisit  their  native  land,  they  return 
to  America  with  increased  love  for  this  country,  and 
that  they  and  their  descendants  are  not  excelled  in 
devotion  and  loyalty  to  American  institutions  ?  How 
has  it  come  to  pass  that  American  diplomacy  is  con- 
quering the  world,  and  that  to-day  the  Great  Powers 
are  looking  to  us  as  the  only  hope  of  peace  ? 

During  the  past  century  the  map  of  Europe  has 
changed.  Dynasties  have  been  overthrown;  new 
governments  have  arisen.  There  is  no  European 
country  at  the  present  time  in  which  there  does  not 
exist  an  organized  party  in  favor  of  a  change  in  the 
form  of  the  government  or  in  some  of  its  organic 
features.  What  is  the  potent  cause  which  has  main- 
tained unimpaired  American  institutions,  and  which 
has  instilled  into  every  American  his  absolute,  un- 
questioned faith  in  the  government  of  his  country 
and  in  her  future  high  destiny  ?  Whence  has  sprung 
that  supreme  trust  in  the  American  people  which 
sustained  Washington  through  the  doubt  and  gloom 
of  the  Revolution,  and  which  upheld  and  comforted 
Lincoln  during  the  darkest  hours  of  the  Civil  War  ? 

From  the  Declaration  of  Independence  down  to  a 
comparatively  recent  period,  and  especially  at  every 
critical   stage   in  our  progress,  the   world   has   been 


THE  PROBLEM   OF   GOVERNMENT     131 

filled  with  prophets  of  evil  omen.  De  Tocqueville, 
seventy  years  ago,  foretold  our  decline,  if  not  our 
downfall,  through  the  tyranny  of  the  majority. 
Macaulay  was  filled  with  the  most  gloomy  forebod- 
ings respecting  the  future  of  American  institutions, 
although  he  was  good  enough  to  postpone  the  time 
when  his  New  Zealander  should  sketch  the  ruins 
of  the  Capitol  at  Washington.  "  I  have  long  been 
convinced,"  he  said,  "  that  institutions  purely  demo- 
cratic must,  sooner  or  later,  destroy  liberty  or  civili- 
zation, or  both."  "  Your  fate  I  believe  to  be  certain, 
though  it  is  deferred  by  a  physical  cause."  "Your 
Constitution  is  all  sail  and  no  anchor."  "When  a 
society  has  entered  on  this  downward  progress, 
either  civilization  or  liberty  must  perish.  Either 
some  Caesar  or  Napoleon  will  seize  the  reins  of 
government  with  a  strong  hand,  or  your  republic 
will  be  as  fearfully  plundered  and  laid  waste  by 
barbarians  in  the  twentieth  century  as  the  Roman 
Empire  was  in  the  fifth,  with  this  difference,  that 
the  Huns  and  Vandals  who  ravaged  the  Roman 
Empire  came  from  without,  and  that  your  Huns 
and  Vandals  will  have  been  engendered  within  your 
own  country  by  your  own  institutions."  The  his- 
torian Freeman  prophesied  the  exchange  of  ambas- 
sadors between  the  North  and  the  South  before  the 
year  1869.  The  publicists  and  statesmen  of  Europe 
foretold  the  dissolution  of  the  Federal  Union  before 


132  ADDRESSES 

the  Civil  War.  They  were  also  convinced  beyond 
doubt  that  the  North  would  never  succeed  in  that 
war,  and,  after  the  close,  they  were  equally  certain 
that  the  Union  was  irretrievably  wrecked,  and  that 
the  South  would  come  back  as  conquered  provinces 
under  some  new  and  stronger  form  of  government. 

Why  has  our  experience  refuted  these  predic- 
tions ?  Why  have  all  the  prophets  proved  to  be 
false  prophets  ?  The  circumstances  surrounding  the 
settlement  of  our  forefathers  in  this  country  do  not 
afford  an  adequate  explanation.  These  results  can- 
not be  accounted  for  by  the  prodigality  of  nature 
as  exhibited  in  land  and  forest  and  mine,  nor  by 
our  freedom  from  powerful  and  aggressive  surround- 
ing nations.  Nor  can  they  be  accounted  for  by 
reason  of  race  temperament  or  character.  Nor  can 
they  be  explained  upon  the  theory  that  our  fore- 
fathers brought  with  them  the  town  meeting,  the 
Magna  Charta,  and  the  Bill  of  Rights,  and  left 
behind  them  the  mediaeval  institutions  of  Europe. 
While  these  auspicious  conditions  may  have  exerted 
a  powerful  influence,  they  present  at  the  most  only  a 
partial  explanation  of  our  remarkable  history.  The 
true  explanation,  the  real  solution  of  the  problem, 
must  be  sought  for  in  some  more  comprehensive  and 
fundamental  cause. 

America's  solution  of  the  great  problem  of  govern- 
ment, the  explanation  of  this  American  phenomenon, 


THE  PROBLEM   OF   GOVERNMENT     133 

IS  found  in  the  plain  wisdom  of  the  plain  people.  It 
has  its  origin  in  the  mind  and  conscience  of  the  great 
body  of  citizens,  in  their  honesty,  intelligence,  and 
fair-mindedness,  in  their  practical  judgment  and  sense 
of  what  is  proper  and  right.  It  is  based  upon  the 
utilization  of  the  common  sense  of  the  average  man, 
or  the  collective  common  sense  of  the  multitude  of 
average  men,  as  the  active,  controlling  force  in 
government.  It  is,  in  its  essence,  simply  the  town- 
meeting  principle  of  government  extended  over  a 
vast  empire.  In  this  common-sense  principle  of 
government,  which  is  merely  the  expression  of  the 
plain  wisdom  of  the  plain  people,  lies  the  key,  the 
only  key,  which  unlocks  the  remarkable  develop- 
ment and  achievements  of  American  civilization 
during  the  past  century. 

There  are  certain  inborn  qualities  which  are  the 
common  heritage  of  mankind.  The  human  race  is 
endowed  by  nature  with  common  sense,  natural 
understanding,  practical  judgment,  a  sense  of  what 
is  just  and  right.  These  qualities  are  distinct  from 
the  endowments  of  genius  or  the  acquisitions  of 
learning.  They  are  unaffected  by  logical  abstrac- 
tions or  the  imagination.  They  are  unaided  by 
any  art,  method,  or  system  of  rules.  They  are  de- 
veloped and  strengthened  by  the  common  every-day 
experiences  in  life  and  in  business.  It  is  these  quali- 
ties of  common  wisdom  which  enter  into,  direct,  and 


134  ADDRESSES 

control  the  judgment  of  the  average  man  and  the 
collective  judgment  of  the  mass  of  average  men. 
In  the  sphere  of  government,  these  qualities  are 
further  aided  in  their  exercise  by  local  self-govern- 
ment, by  free  discussion,  and  by  a  system  of  pri- 
mary education. 

The  great  truths  of  the  Declaration  — "  That  all 
men  are  created  equal,  that  they  are  endowed  by 
their  Creator  with  certain  unalienable  rights,  that 
among  these  are  life,  liberty,  and  the  pursuit  of 
happiness.  That  to  secure  these  rights,  governments 
are  instituted  among  men,  deriving  their  just  powers 
from  the  consent  of  the  governed  "  —  appeal  to  these 
natural  qualities  in  man.  The  great  principles  of 
peace,  humanity,  charity,  the  common  brotherhood 
of  man,  appeal  to  the  same  inborn  qualities. 

Hitherto  governments  have  suppressed  these  nat- 
ural qualities  in  mankind.  The  practical  wisdom 
and  good  sense  of  the  average  citizen,  or  the  mass 
of  average  citizens,  have  never  been  recognized  as  the 
active  controlling  force  in  the  State.  Governments 
have  hitherto  proceeded  on  the  theory  that  it  was 
necessary  to  have  a  governing  class  who  were  spe- 
cially qualified,  by  reason  of  superior  knowledge  and 
experience,  to  manage  public  affairs.  The  result  has 
been  that  society  has  almost  universally  accepted 
some  form  of  autocratic  or  class  government  —  the 
rule  of   a  king  or  of  an  aristocracy  —  as   the   lesser 


THE  PROBLEM   OF   GOVERNMENT     135 

evil.  The  ability  of  the  people  to  govern  them- 
selves was  denied.  It  was  not  believed  that  any 
such  governing  faculty  was  born  in  man.  No  con- 
fidence was  placed  in  the  common  sense  of  the 
great  body  of  citizens  as  the  ruling  power.  Liberty 
and  self-government  were  denied  mankind  because 
it  was  thought  that  these  privileges  were  subver- 
sive of  civil  order. 

For  the  first  time  in  the  history  of  the  world, 
the  United  States  has  availed  itself  of  the  plain 
wisdom  of  the  plain  people,  of  the  sense  and  con- 
science of  the  average  man,  or,  more  properly  speak- 
ing, of  the  mass  of  average  men,  as  the  ruling  force 
in  the  State.  Never  before  has  government  relied 
upon  these  natural  qualities  as  the  ultimate  and 
the  controlling  power  in  public  affairs.  This  is 
America's  discovery.  This  is  her  gift  to  humanity 
and  to  civilization.  She  has  made  known  man's 
capacity  for  self-government,  and  this  is  her  crown- 
ing glory. 

It  is  true  that  there  have  been  some  previous 
examples  of  popular  governments,  notably  in  ancient 
Greece  and  in  mediaeval  Italy ;  but  these  attempts  at 
self-government  were  made  under  adverse  circum- 
stances and  upon  a  small  scale.  This  American 
theory  has  never  before  been  fully  tried  under  favor- 
able surroundings,  and  upon  a  national  scale.  Here 
the  soil  was  well  prepared.     "  God  had  sifted  three 


136  ADDRESSES 

kingdoms  to  find  the  wheat  for  this  planting."  The 
country  was  new,  of  vast  extent,  and  of  unsurpassed 
natural  resources.  The  wide  ocean  separated  this 
continent  from  the  powerful  nations  of  the  Old 
World.  Our  fathers  had  brought  with  them  local 
self-government  and  the  fundamental  principles  of 
personal  liberty.  It  thus  appears  that,  notwithstand- 
ing these  former  examples  of  popular  government, 
the  United  States  for  the  first  time  has  really 
afforded  the  proper  opportunity  for  the  common 
people  to  test  their  ability  to  govern  themselves, 
and  that  we  were  the  first  to  discover  and  utilize 
this  common-sense  principle  of  government,  founded 
upon  the  judgment  of  the  mass  of  citizens,  and  to 
make  it  the  active  and  controlling  governing  power. 

In  the  progress  of  American  institutions,  this  new 
governing  force,  resting  on  the  general  sense  of  the 
body  of  citizens,  has  become  all-powerful  —  the  abso- 
lute master  of  the  State.  It  has  supplanted  the  true 
function  of  the  representative  system,  and  dominates 
the  whole  machinery  of  government.  Executives 
and  legislatures  bow  before  this  voice  of  the  people. 
It  fears  nothing.  It  seeks  only  to  do  what  is  proper 
and  right.  We  call  it  public  opinion.  It  began  to 
assert  itself  at  an  early  period.  John  Adams  relates 
that  for  some  time  the  vote  of  the  Convention  was 
constantly  against  the  passage  of  the  Declaration. 
*'  For  many  days,"  he  says,  "  the  majority  depended 


THE   PROBLEM   OF   GOVERNMENT     137 

on  Mr.  Hewes  of  North  Carolina.  While  a  mem- 
ber one  day  was  reading  documents  to  prove  that 
public  opinion  was  in  favor  of  the  measure,  Mr. 
Hewes  suddenly  started  upright,  and  lifting  up  both 
hands  to  heaven,  as  if  in  a  trance,  cried  out:  *  It  is 
done,  and  I  will  abide  by  it ! ' "  Our  recent  history 
affords  startling  illustrations  of  its  irresistible  power. 
In  other  countries,  like  England  and  France,  where 
liberal  institutions  exist,  the  people  are  satisfied  with 
electing  their  agents  to  carry  on  the  government. 
This  is  not  the  case  in  the  United  States.  Here 
public  officers  are  and  remain  the  servants  of  the 
people,  to  execute  at  all  times  their  sovereign  will. 

This  striking  phase  in  the  development  of  our 
institutions  has  been  pointed  out  recently  by  Bryce, 
in  his  "American  Commonwealth."  Speaking  of 
public  opinion,  he  says: 

"  It  stands  above  parties,  being  cooler  and  larger 
minded  than  they  are ;  it  awes  party  leaders,  and 
holds  in  check  party  organizations.  No  one  ventures 
openly  to  oppose  it.  It  determines  the  duration 
and  the  character  of  national  policy.  ...  It  is  the 
central  point  of  the  whole  American  policy.  .  .  . 
It  may  sometimes  be  long  in  speaking,  but  when 
it  speaks,  it  speaks  with  a  weight  which  the  wisest 
governing  class  cannot  claim.  ...  It  grows  up,  not 
in  Congress,  not  in  State  legislatures,  not  in  those 
great  conventions  which  frame  platforms  and  choose 


138  ADDRESSES 

candidates,  but  at  large  among  the  people.  It  is 
expressed  in  voices  everywhere.  It  rules  as  a  per- 
vading, impalpable  power,  like  the  ether  which 
passes  through  all  things.  It  binds  all  the  parts 
of  the  complicated  system  together,  and  gives  them 
whatever  unity  of  aim  and  action  they  possess." 
"Towering  over  Presidents  and  State  governors, 
over  Congress  and  State  legislatures,  over  conven- 
tions and  the  vast  machinery  of  party,  public 
opinion  stands  out  in  the  United  States  as  the 
great  source  of  power,  the  master  of  servants  who 
tremble  before  it." 

Our  whole  history  illustrates  the  soundness  of  this 
new  governing  force;  in  other  words,  that  the  prac- 
tical judgment  of  the  mass  of  citizens  has  been  wise 
and  right.  The  Declaration  of  Independence  was  no 
sudden  nor  hasty  act.  The  people  had  petitioned, 
and  petitioned  in  vain,  for  the  redress  of  grievances. 
They  were  driven  to  independence  only  after  re- 
peated acts  of  oppression,  and  as  a  last  resort.  And 
with  independence  the  people  saw  the  practical  neces- 
sity of  a  closer  union  of  the  Colonies.  Independence 
and  union  were  always  associated  together  in  the 
popular  mind.  When  the  Articles  of  Confederation 
proved  too  weak  for  practical  governing  purposes, 
a  stronger  union  was  entered  into  under  the  Federal 
Constitution.  Unfortunately,  there  grew  up  under 
this  Constitution  two  opposing,  irreconcilable  social 


THE   PROBLEM   OF   GOVERNMENT     139 

systems.  Seeking  to  avoid  the  inevitable  conflict 
between  freedom  and  slavery,  the  people  for  forty 
years  tried  compromise  after  compromise.  But  when 
the  hour  of  battle  came  they  rose  in  their  supreme 
power  and  declared :  "  We  join  ourselves  to  no 
party  that  does  not  carry  the  flag  and  keep  step  to 
the  music  of  the  Union."  The  theoretical  argument 
of  State  sovereignty,  founded  upon  the  nature  of 
a  Federal  compact,  the  practical  judgment  of  the 
people  rejected.  The  so-called  invincible  logic  of 
Calhoun  made  little  impression  on  the  popular 
mind.  The  plain  sense  of  the  plain  people  revolted 
against  the  idea  of  a  dismemberment  of  the  Union. 
Here  was  a  land  designed  by  nature  for  the  occu- 
pancy of  one  people,  whose  great  waterways,  moun- 
tains, and  plains  must  not  be  divided  between  two 
or  more  independent  nations.  One  people  had  sub- 
dued this  wilderness.  One  people  had  fought  the 
War  of  the  Revolution,  and  established  the  Consti- 
tution,—  a  people  made  one  by  a  common  lineage,  a 
common  language,  a  common  history,  common  strug- 
gles, common  sacrifices,  common  institutions,  and  a 
common  religion.  There  was  no  answer  in  the  minds 
of  the  people  to  these  practical  arguments,  and  the 
Civil  War  was  carried  on  until  the  Union  was  re- 
stored. To  the  success  of  that  war  it  became  in- 
dispensable to  clothe  the  President  with  almost 
autocratic  powers ;  and  the  good  sense  of  the  people 


140  ADDRESSES 

responded  to  this  situation  by  declaring  that  the 
Federal  Constitution  must  be  made  elastic  enough 
to  save  the  country. 

The  weakest  spot  in  a  Federal  system  of  govern- 
ment, outside  of  the  doctrine  of  State  sovereignty, 
is  the  election  of  the  Chief  Executive.  There  was 
no  constitutional  way  for  meeting  the  disputed  Presi- 
dential election  of  1876;  but  the  people  insisted 
that  this  crisis  must  be  met  in  a  peaceful  way,  even 
though  means  were  provided  outside  the  boundaries 
of  the  organic  law.  Disputed  successions  have 
caused  numerous  long  and  bloody  wars  in  the  mon- 
archies of  the  Old  World.  The  approval  of  the 
Electoral  Commission  and  the  endorsement  of  its 
decision  is  one  of  the  strongest  illustrations  of  the 
practical  wisdom  of  the  people  as  the  ruling  force 
in  government. 

In  the  events  preceding  the  Spanish  War,  the 
popular  mind,  although  wrought  up  to  the  highest 
tension,  acted  with  the  utmost  calmness,  and  war 
was  not  declared  until  it  was  demanded  by  the  dic- 
tates of  humanity  as  well  as  national  honor. 

While  the  general  sense  of  the  people  has  always 
been  right  with  respect  to  broad  questions  of  public 
policy,  it  may  be  claimed  that  this  is  hardly  true  con- 
cerning comparatively  minor  issues.  I  maintain,  how- 
ever, that  on  questions  like  the  tariff,  the  currency, 
civil  service  reform,  and  all  questions  which  relate  to 


THE  PROBLEM   OF  GOVERNMENT     141 

the  administration  of  government,  the  judgment  of 
the  masses  has  been  equally  wise.  It  may  take  a 
longer  discussion  of  these  more  difficult  and  com- 
plex subjects  before  the  popular  mind  reaches  a  full 
and  intelligent  understanding  of  them,  and  there 
may  be  temporary  setbacks;  but  our  experience  in 
every  case  shows  that  in  the  end  the  decision  of 
the  people  has  been  right. 

The  same  common  sense  which  has  characterized 
the  rule  of  the  people  has  also  guided  our  great  states- 
men in  the  construction  of  the  machinery  of  govern- 
ment, in  the  interpretation  of  the  Constitution,  in  our 
foreign  relations,  and  in  the  critical  periods  of  the 
nation's  history. 

The  framers  of  the  Constitution  were  men  of  strong 
common  sense  and  practical  wisdom.  They  were 
neither  dreamers  nor  theorists  nor  revolutionists. 
They  sought  to  solve  the  great  problem  of  the  hour 
by  rational  means.  The  logic  of  the  situation  de- 
manded some  kind  of  Federal  Union.  This  was  the 
only  form  of  government  adapted  to  thirteen  inde- 
pendent States.  They  set  about  to  form  such  a  polit- 
ical system  by  remedying  what  experience  had  taught 
them  were  the  defects  in  the  old  Articles  of  Confed- 
eration. They  cured  these  evils  by  making  the  new 
Constitution  bear  directly  upon  the  people  instead  of 
upon  the  States,  by  granting  certain  general  powers 
to  Congress,  such  as  the  regulation  of  commerce,  by 


142  ADDRESSES 

the  establishment  of  the  Federal  Judiciary,  and  by 
other  changes.  They  also  reconciled  by  compromise 
or  elimination  conflicting  interests  and  jealousies.  So 
successful  were  their  efforts  that  Gladstone  has  de- 
clared that  *'  The  American  Constitution  is  the  most 
wonderful  work  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man." 

In  the  construction  of  the  Constitution  the  Supreme 
Court  have  ever  been  guided  by  practical  wisdom 
rather  than  abstract  theory.  They  have  interpreted 
that  instrument  to  meet  the  wants  and  necessities  of 
a  great  and  progressive  people,  who  were  extending 
over  a  new  continent,  and  whose  social  needs  and 
national  aspirations  were  constantly  changing.  They 
have  applied  to  its  provisions  the  great  doctrine  of 
reasonableness.  They  have  placed  a  liberal  construc- 
tion upon  its  general  powers  when  a  national  exi- 
gency demanded  it.  When  it  became  absolutely  vital 
to  the  safety  of  the  Republic,  during  the  Civil  War, 
to  issue  paper  money  as  a  legal  tender,  the  court 
sustained  the  constitutionality  of  the  act,  as  coming 
within  the  implied  powers  of  the  Constitution,  al- 
though the  direct  grant  of  such  a  power  in  the  body 
of  the  instrument  had  been  expressly  excluded  by  the 
framers.  Listen  to  the  common-sense  view  of  Mr. 
Justice  Miller  on  this  subject: 

"  The  coin  in  the  country,  if  it  could  all  have  been 
placed   within   the   control   of   the   Secretary  of   the 


THE   PROBLEM   OF   GOVERNMENT     143 

Treasury,  would  not  have  made  a  circulation  sufficient 
to  answer  army  purchases  and  army  payments,  to  say 
nothing  of  the  ordinary  business  of  the  country.  A 
general  collapse  of  credit,  of  payment,  and  of  business 
seemed  inevitable,  in  which  faith  in  the  ability  of  the 
government  would  have  been  destroyed,  the  rebellion 
would  have  triumphed,  the  States  would  have  been 
left  divided,  and  the  people  impoverished.  The 
National  Government  would  have  perished,  and,  with 
it,  the  Constitution  which  we  are  now  called  upon  to 
construe  with  such  nice  and  critical  accuracy." 

The  history  of  American  diplomacy  affords  a  most 
striking  example  of  this  common-sense  principle  of 
government  and  of  its  power  and  effectiveness.  The 
secrecy,  subtlety,  and  reserve  which  characterize  the 
diplomacy  of  the  Old  World  have  been  abandoned. 
Our  intercourse  with  foreign  nations  is  marked  by 
openness,  directness,  simplicity,  while  observant  of  all 
customary  proprieties  and  courtesies.  It  has  been 
distinguished  by  an  honesty  of  purpose  and  a  high 
moral  tone.  It  has  also  been  pacific,  humane,  and  con- 
ducted with  due  recognition  of  the  rights  of  others. 
Its  triumphs  of  the  past  few  years  in  the  far  East  and 
elsewhere,  and  notably  in  the  recent  action  of  President 
Roosevelt,  have  placed  the  United  States  in  the  very 
front  rank  among  the  Great  Powers  of  the  World. 
America  has  become  the  peacemaker  of  nations. 

There  are  also  numerous  instances  of  the  exercise 


144  ADDRESSES 

of  the  same  qualities  of  plain  wisdom  and  good  sense 
by  our  great  leaders  in  critical  periods  of  the  nation's 
history.  What  more  sublime  act  of  practical  wisdom 
has  the  world  witnessed  than  the  conduct  of  Wash- 
ington at  the  close  of  the  Revolutionary  War  and 
at  the  head  of  a  victorious  army?  Casting  aside 
personal  ambition  and  the  machinations  of  designing 
men,  he  journeyed  to  Annapolis,  and,  entering  the 
Hall  of  Congress,  took  the  seat  assigned  him.  The 
presiding  officer  then  declared  that  "  the  United  States 
in  Congress  assembled  were  prepared  to  receive  his 
communication."  Rising  from  his  seat  with  a  maj- 
esty and  dignity  beyond  that  of  any  crowned  king, 
Washington,  in  his  most  impressive  manner,  said: 

"  The  great  events  on  which  my  resignation  de- 
pended having  at  length  taken  place,  I  now  have  the 
honor  of  offering  my  sincere  congratulations  to  Con- 
gress, and  of  presenting  myself  before  them,  to  sur- 
render into  their  hands  the  trust  committed  to  me, 
and  to  claim  the  indulgence  of  retiring  from  the 
service  of  my  country." 

Turn  to  another  instance  of  the  highest  practical 
wisdom  by  the  author  of  the  Declaration  of  Independ- 
ence. Jefferson  had  grave  doubts  of  the  power  of 
the  United  States,  under  the  Constitution,  to  acquire 
the  vast  territory  covered  by  the  Louisiana  Purchase. 
"If,  however,"  he  wrote,  "our  friends  shall  think  dif- 
ferently, certainly   I  shall  acquiesce  with  satisfaction, 


THE   PROBLEM   OF   GOVERNMENT     145 

confident  that  the  good  sense  of  our  country  will  cor- 
rect the  evil  of  construction  when  it  shall  produce  ill 
effect."  Waiving  his  scruples  as  to  the  constitution- 
ality of  the  measure,  trusting  to  the  good  sense  of  the 
people  to  correct  the  evil,  if  it  should  prove  to  be 
such,  and  in  obedience  to  the  popular  mandate,  Jef- 
ferson took  advantage  of  this  golden  opportunity, 
which,  in  the  words  of  Grover  Cleveland,  "doubled 
the  area  of  the  young  American  nation,  and  dedicated 
a  new  and  wide  domain  to  American  progress  and 
achievement." 

In  the  construction  of  the  Constitution,  John 
Marsliall  disdained  all  theories  and  abstractions. 
He  cared  nothing  for  the  doctrine  that  a  Federal 
Union  is  a  mere  league  of  sovereign  States,  that 
theoretically  there  can  be  no  such  thing  as  a  sov- 
ereign over  sovereigns,  that  theoretically  a  sovereign 
State  may  annul  any  act  of  the  central  power  and 
withdraw  from  the  voluntary  compact  whenever  it 
deems  it  expedient  so  to  do.  On  the  contrary,  he 
declared  that  the  Constitution  must  be  made  to 
fulfil  the  great  practical  purposes  for  which  it  was 
designed.  The  Constitution  was  ordained  by  the 
people  as  the  paramount  law  of  the  land,  supreme 
over  Congress  and  State  legislatures.  It  organized 
a  government  complete  within  itself.  It  established 
a  perpetual  Union,  and  safeguarded  the  rights  of 
the  people.      It  was  not  "a  magnificent  structure," 

10 


148  ADDRESSES 

warranted  by  the  Constitution  upon  military  neces- 
sity, I  invoke  the  considerate  judgment  of  mankind 
and  the  gracious  favor  of  Almighty  God."  It  was 
Lincoln's  practical  judgment  in  the  supreme  crisis 
of  the  nation's  history  which  maintained  the  Union 
and  abolished  slavery. 

It  has  sometimes  happened  that  the  judgment  of 
the  people  has  been  wiser  than  the  judgment  of  their 
great  leaders.  Recall  the  movement  by  prominent 
members  of  his  own  party  to  force  Lincoln  to  with- 
draw or  resign,  after  his  renomination  in  June,  1864, 
and  how,  in  this  dark  hour  of  the  Republic,  the 
plain  people,  rising  in  their  might,  said :  "  No,  this 
is  our  President.  He  sprang  from  our  loins,  he  is 
confronted  with  the  most  difficult  task  which  ever 
fell  to  mortal  man;  but  if  any  one  can  save  the 
Union  and  end  this  dreadful  war,  he  can ;  we  trust 
him,  we  believe  in  him,  we  love  him."  The  people 
then  saw  what  the  whole  world  soon  acknowledged, 
—  that  Abraham  Lincoln  was  the  master  spirit;  that 
his  grasp  of  the  situation  and  knowledge  of  men 
were  unexcelled;  that  beneath  that  tall,  gaunt  frame, 
that  unconventionalism,  that  homeliness  of  manner, 
tinged  at  all  times  with  a  weird  melancholy,  if  not 
despair,  there  lay  hidden  the  most  gentle,  the  most 
heroic,  the  grandest  soul  in  American  history. 

They  tell  us  that  Americans  are  becoming  fatalists ; 
that  this  is  manifested  in  our  belief  in  the  "divine 


THE   PROBLEM   OF   GOVERNMENT    149 

mission  of  the  Republic,"  in  our  faith  that  God  has 
chosen  this  nation  to  work  out,  under  His  protecting 
hand  and  for  all  humanity,  a  higher  type  of  civiliza- 
tion, in  the  conviction  that  the  Federal  Constitution 
is  the  very  Ark  of  the  Covenant  "whereon  no  man 
may  lay  rash  hands,"  and  in  our  intense  confidence 
in  the  soundness  of  our  institutions  and  the  future 
(rf  our  country.  Be  it  so !  We  do  not  wonder  at  the 
charge.  The  success  of  this  experiment  in  govern- 
ment is  the  mar\-el  of  history.  This  rule  of  the 
people  has  brought  forth  a  political  and  social 
organization  of  which  the  world  never  dreamed. 
Here  are  exhibited  political  institutions  which  have 
shown  a  stability  and  at  the  same  time  an  elasticity 
beyond  those  of  any  other  form  of  government 

Here  is  a  society  which  possesses  all  the  elements 
of  the  highest  civilization  and  progress.  Look  for 
a  moment  at  this  country  to-day  from  an  educa- 
tional and  religious  point  of  view,  as  seen  by  two 
pre-eminent  scholars  and  thinkers,  one  an  English- 
man and  the  other  an  American.  James  Bryce  says: 
"  There  has  been  within  these  last  thirty-five  years  a 
development  of  the  higher  education  in  the  United 
States  perhaps  without  a  parallel  in  the  world." 

Charles  W.  Eliot  says :  "  The  successful  establish- 
ment and  support  of  religious  institutions  —  churches, 
seminaries,  and  religious  charities  —  upon  a  purely 
voluntary  system,  is  an  unprecedented  achievement  of 


148  ADDRESSES 

warranted  by  the  Constitution  upon  military  neces- 
sity, I  invoke  the  considerate  judgment  of  mankind 
and  the  gracious  favor  of  Almighty  God."  It  was 
Lincoln's  practical  judgment  in  the  supreme  crisis 
of  the  nation's  history  which  maintained  the  Union 
and  abolished  slavery. 

It  has  sometimes  happened  that  the  judgment  of 
the  people  has  been  wiser  than  the  judgment  of  their 
great  leaders.  Recall  the  movement  by  prominent 
members  of  his  own  party  to  force  Lincoln  to  with- 
draw or  resign,  after  his  renomination  in  June,  1864, 
and  how,  in  this  dark  hour  of  the  Republic,  the 
plain  people,  rising  in  their  might,  said :  "  No,  this 
is  our  President.  He  sprang  from  our  loins,  he  is 
confronted  with  the  most  difficult  task  which  ever 
fell  to  mortal  man;  but  if  any  one  can  save  the 
Union  and  end  this  dreadful  war,  he  can;  we  trust 
him,  we  believe  in  him,  we  love  him."  The  people 
then  saw  what  the  whole  world  soon  acknowledged, 
—  that  Abraham  Lincoln  was  the  master  spirit;  that 
his  grasp  of  the  situation  and  knowledge  of  men 
were  unexcelled ;  that  beneath  that  tall,  gaunt  frame, 
that  unconventionalism,  that  homeliness  of  manner, 
tinged  at  all  times  with  a  weird  melancholy,  if  not 
despair,  there  lay  hidden  the  most  gentle,  the  most 
heroic,  the  grandest  soul  in  American  history. 

They  tell  us  that  Americans  are  becoming  fatalists ; 
that  this  is  manifested  in  our  belief  in  the  "  divine 


THE   PROBLEM   OF   GOVERNMENT     149 

mission  of  the  Republic,"  in  our  faith  that  God  has 
chosen  this  nation  to  work  out,  under  His  protecting 
hand  and  for  all  humanity,  a  higher  type  of  civiliza- 
tion, in  the  conviction  that  the  Federal  Constitution 
is  the  very  Ark  of  the  Covenant  *'  whereon  no  man 
may  lay  rash  hands,"  and  in  our  intense  confidence 
in  the  soundness  of  our  institutions  and  the  future 
of  our  country.  Be  it  so !  We  do  not  wonder  at  the 
charge.  The  success  of  this  experiment  in  govern- 
ment is  the  marvel  of  history.  This  rule  of  the 
people  has  brought  forth  a  political  and  social 
organization  of  which  the  world  never  dreamed. 
Here  are  exhibited  political  institutions  which  have 
shown  a  stability  and  at  the  same  time  an  elasticity 
beyond  those  of  any  other  form  of  government. 

Here  is  a  society  which  possesses  all  the  elements 
of  the  highest  civilization  and  progress.  Look  for 
a  moment  at  this  country  to-day  from  an  educa- 
tional and  religious  point  of  view,  as  seen  by  two 
pre-eminent  scholars  and  thinkers,  one  an  English- 
man and  the  other  an  American.  James  Bryce  says : 
"  There  has  been  within  these  last  thirty-five  years  a 
development  of  the  higher  education  in  the  United 
States  perhaps  without  a  parallel  in  the  world." 

Charles  W.  Eliot  says :  "  The  successful  establish- 
ment and  support  of  religious  institutions  —  churches, 
seminaries,  and  religious  charities  —  upon  a  purely 
voluntary  system,  is  an  unprecedented  achievement  of 


150  ADDRESSES 

the  American  democracy.  ...  A  similar  exhibition 
of  diffused  mental  and  moral  energy  has  accompanied 
the  establishment  and  the  development  of  a  system 
of  higher  instruction  in  the  United  States,  with  no 
inheritance  of  monastic  endowments,  and  no  gifts 
from  royal  or  ecclesiastical  personages  disposing  of 
great  resources  derived  from  the  State,  and  with  but 
scanty  help  from  the  public  purse.  .  .  .  The  endow- 
ment of  institutions  of  education,  including  libraries 
and  museums,  by  private  persons  in  the  United 
States  is  a  phenomenon  without  precedent  or  par- 
allel, and  is  a  legitimate  effect  of  democratic  insti- 
tutions. Under  a  tyranny — were  it  that  of  a  Marcus 
Aurelius  —  or  an  oligarchy  —  were  it  as  enlightened 
as  that  which  now  rules  Germany  —  such  a  phenom- 
enon would  be  simply  impossible." 

But  the  most  remarkable  feature  of  this  American 
democracy  is  its  mighty  reserve  power.  It  is  "  the 
people's  government,  made  for  the  people,  made  by  the 
people,  and  answerable  to  the  people."  Each  citizen 
is  a  ruler  of  the  Republic,  a  participator  in  its  great- 
ness and  its  glory,  its  joys  and  its  sorrows.  He  knows 
that  its  fame  and  power  rest  on  his  own  exertions. 
He  realizes  that  he  is  a  citizen  of  a  vast  country 
which  stretches  across  a  continent.  He  recognizes 
the  strength  and  excellence  of  popular  government, 
because  he  is  one  of  the  people.  He  makes  a  rigid 
Constitution  elastic  whenever  it  obstructs  the  progress 


THE  PROBLEM   OF  GOVERNMENT     151 

or  endangers  the  safety  of  the  Republic.  He  feels  the 
sense  of  personal  responsibility  which  attaches  to  his 
own  work.  He  is  law-abiding,  because  he  makes  the 
laws  and  recognizes  the  necessity  of  obeying  them. 
He  believes  in  the  fullest  publicity,  a  free  press,  free 
inquiry,  and  a  full  discussion.  He  believes  in  equality 
and  a  fair  field  for  all.  He  has  faith  in  the  *'  cura- 
tive power  of  freedom."  He  is  conservative  in  his 
fundamental  beliefs.  He  has  faith  in  God  and  in 
mankind.  He  has  the  highest  regard  for  public  obli- 
gations and  the  financial  standing  of  the  nation.  He 
believes  in  a  state  system  of  primary  education.  Being 
fair-minded  and  temperate,  he  will  not  consciously  leg- 
islate against  the  rich  or  the  poor.  Possessing  politi- 
cal power  and  civil  rights,  he  has  nothing  to  fight  for, 
nothing  to  rebel  against.  He  is  self-confident,  self- 
reliant,  and  cool-headed.  He  has  the  **  independence 
of  conscious  strength."  He  is  just,  and  regardful  of 
the  equal  rights  of  others.  He  is  opposed  to  war. 
He  is  magnanimous  in  victory.  He  is  a  believer  in 
liberty,  humanity,  and  peace  and  good-will  among  the 
nations  of  the  earth.  He  is  no  iconoclast ;  he  believes 
in  building  up,  and  not  in  tearing  down.  He  cares 
little  for  tendencies,  theories,  or  abstractions.  He  will 
take  a  little  less  individualism  or  a  little  more  pater- 
nalism, a  little  less  protection  or  a  little  more  free 
trade,  if  at  any  time  he  thinks  it  best  meets  the  public 
wants.     He  has  a  large  reserve  fund  of  practical  wis- 


152  ADDRESSES 

dom.  He  addresses  himself  to  the  questions  of  the 
hour.  The  storms  of  party  passion,  the  waves  of  cor- 
ruption, may  beat  about  him,  but  he  is  always  con- 
scious of  his  own  supreme  power,  and  that  he  is  the 
master  of  the  situation.  He  fears  neither  discussion 
nor  agitation,  socialism  nor  imperialism.  He  is  him- 
self the  dictator,  the  only  Caesar  whom  he  recognizes. 
He  sits  upon  the  throne.  He  both  reigns  and  gov- 
erns. He  is  the  State.  He  stands  for  the  business 
judgment  of  the  people  as  the  controlling  factor  in 
government.  He  is  the  embodiment  of  common  sense 
brought  to  bear  as  the  governing  force  in  the  State. 
Herein  lies  the  explanation  of  the  all-subduing  power 
and  efficiency  of  this  new  force  in  government.  This 
is  the  reason  why  this  country  has  been  able  to  main- 
tain a  democratic  form  of  government  and  a  Federd 
Union  for  more  than  a  century,  to  secure  liberty  and 
equality  for  all  men,  to  meet  and  overcome  every  na- 
tional crisis,  and  to  advance  step  by  step  to  its  pres- 
ent position  of  power  and  influence  among  the  great 
nations  of  history. 

Fellow  citizens,  I  believe  in  this  celebration.  I 
believe  with  John  Adams  that  this  anniversary  should 
be  forever  dedicated  to  patriotic  rejoicings,  and  where 
more  fittingly  than  in  this  temple  consecrated  for  so 
many  generations  to  human  liberty.?  I  believe  that 
on  this  day  every  American  should  bend  the  knee  in 
devout  thankfulness  and  gratitude  to  Almighty  God 


THE   PROBLEM   OF   GOVERNMENT     153 

that  his  lot  is  cast  in  this  favored  land  and  under 
the  mild  sway  of  these  institutions.  Fortunate,  pros- 
perous, free  America !  Look  in  upon  the  past  pages 
of  history.  Look  out  upon  the  present  face  of  this 
star,  and  where  will  you  find  such  a  picture  of  human 
society  ?  Cross  the  Atlantic  to  the  nations  of  Europe ; 
cross  the  Pacific  to  the  nations  of  the  Orient ;  turn  to 
the  fairest  picture  of  man  in  the  ancient  world,  when 
Rome  in  the  age  of  the  Antonines  "comprehended 
the  fairest  part  of  the  earth  and  the  most  civilized 
portion  of  mankind  " :  contrast  these  pictures  of  so- 
ciety with  the  comfort,  the  well-being,  the  happiness 
of  the  people,  which  America  presents  at  this  hour. 

Our  political  horizon  may  not  be  free  from  clouds. 
There  is  no  such  thing  as  perfection  on  earth.  Man 
is  an  imperfect  being,  and  governments  reflect  that 
imperfection.  Everything  in  this  world  is  relative. 
We  can  only  judge  by  comparison.  We  have  our 
problems,  but  what  are  they  in  comparison  with 
those  which  to-day  confront  England,  France,  Ger- 
many, Italy,  Austria,  Russia,  and  the  nations  of  the 
far  East  ? 

But  our  problems,  it  may  be  said,  are  serious, 
and  how  are  they  to  be  solved  ?  My  answer  is : 
They  are  to  be  solved  as  the  framers  solved  the  prob- 
lem of  the  Federal  Constitution,  as  Lincoln  solved  the 
problem  of  emancipation,  as  Theodore  Roosevelt  and 
John  Hay  are  solving  the  problems  of  diplomacy,  as 


154  ADDRESSES 

the  people  have  solved  all  the  great  problems  since  the 
Declaration  of  Independence  —  by  unfettered  discus- 
sion, by  looking  at  the  question  from  all  points  of 
view,  by  the  reconciliation  of  jealousies  and  differ- 
ences, by  mutual  concession,  by  compromises,  by  fair- 
ness and  honesty  of  purpose,  by  a  recognition  of  mutual 
rights,  by  forbearance,  human  sympathy,  and  charity, 
and  by  ever  bearing  in  mind  that  government  has  its 
limitations,  that  God  did  not  create  men  of  equal  ca- 
pacity and  energy,  and  that  nature  has  decreed  that 
wealth  and  labor  are  inseparable. 

Fellow  citizens,  this  American  Republic  is  marching 
to  the  conquest  of  the  world.  Every  governmental 
change  in  Etirope  is  a  change  in  the  direction  of 
American  institutions.  Monarchy,  class-rule,  the  tra- 
ditions of  the  past  are  crumbling,  and  States  and 
peoples  are  drifting  towards  this  American  ideal. 
The  benign  rays  from  this  new  star  are  spreading 
hope  and  rejoicing  to  all  mankind.  It  is  to  the  West 
the  world  is  now  looking.  It  is  from  the  West  the 
world  is  now  receiving  light.  This  is  the  American 
age.  We  have  discovered  the  best  and  the  strongest 
governing  force  known  to  man.  It  is  founded  upon 
human  nature.  It  is  based  on  the  primal  elements  of 
our  being.  It  springs  from  God  Himself.  It  pleads 
for  the  down-trodden  and  oppressed  of  all  nations,  for 
the  abolition  of  caste  and  privilege  and  the  mediaeval 
traditions  which  have  held   mankind  in  chains.     It 


THE   PROBLEM  OF   GOVERNMENT     155 

pleads  for  justice,  for  charity,  for  righteousness.  This 
democracy  of  Washington  and  Lincoln  is  carved  from 
the  solid  granite,  and  inscribed  upon  it  in  letters 
of  gold  are  the  eternal  truths :  "  Peace,  Humanity, 
Liberty." 

I  have  faith  in  the  perpetuity  of  American  institu- 
tions; but  if  in  the  providence  of  God  it  shall  ever 
be  our  destiny  to  share  the  fate  of  other  nations,  if 
it  shall  ever  be  found  that  this  government  by  the 
people  is  mortal,  if  it  shall  ever  come  to  pass  in 
the  far-off  time  that  some  future  Gibbon  shall  write 
the  history  of  The  Decline  and  Fall  of  the  American 
Republic,  —  our  greatness  and  our  glory  will  still 
survive,  since  we  have  accomplished  a  work  more 
sublime  than  the  intellectual  beauty  of  classic  Greece, 
more  enduring  than  the  Civil  Law  of  imperial  Rome, 
and  grander  than  all  the  triumphs  of  civilization  in 
the  modern  world;  for  we  have  given  to  humanity 
and  the  coming  ages  the  immortal  principle  that 
man,  made  in  the  image  of  his  Creator,  is  capable 
of  self-government. 


H  DAY  T7SP 

LOAN  DEPT. 


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